[2012] KEELRC 126 (KLR)
The court found that the claimant had established, on a balance of probabilities, the existence of an employment relationship with the respondent from November 2005 to November 2009. The respondent failed to discharge the statutory duty to maintain employment records and did not provide credible evidence to rebut...
Source-derived case information.
- Citation
- [2012] KEELRC 126 (KLR)
- Parties
- Claimant: John Gachau Gitonga; Respondent: Miss Nduta Mbile
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 19 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant as prayed.
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Oral Employment Contract, Minimum Wages, Employment Records
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gachau Gitonga
Claimant
Miss Nduta Mbile
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether there existed an employment relationship between the claimant and respondent.
- 2 Whether the termination of the claimant's employment was unfair.
- 3 Whether the claimant is entitled to remedies for unfair termination.
Ratio Decidendi
The court found that the claimant had established, on a balance of probabilities, the existence of an employment relationship with the respondent from November 2005 to November 2009. The respondent failed to discharge the statutory duty to maintain employment records and did not provide credible evidence to rebut the claimant's case. The court further held that the respondent's failure to participate in the conciliatory process was detrimental to her position. Accordingly, the court concluded that the termination was unfair and the claimant was entitled to judgment as prayed in the statement of claim.
Court Disposition
Judgment for the claimant as prayed.
Orders
- Judgment is entered for the claimant as prayed in the statement of claim dated 6th January 2011.
- A decree shall issue accordingly.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
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(Before: Before Hon. Justice Byram Ongaya on 28th August, 2012)
CAUSE NO. 19 OF 2011
JOHN GACHAU GITONGA ..…………………………………………………………CLAIMANT
VERSUS
MISS NDUTA MBILE ………………………….……………………………….… RESPONDENT
Claimant appearing in person (Mr. Gitonga)
Ms Macheru appearing for the Respondent
JUDGEMENT
This is a claim for unfair termination as set out in the memorandum of claim dated 6th January, 2011. The claimant bases his claim on the oral contract of employment and the various service orders set out in the statement of claim on minimum wages.
The Claimant has shown in his evidence that there existed a contract of employment between the parties from November 2005 to November 2009. The duty to maintain records of the employment relationship is vested upon the employer and which was not discharged in the instant case.
The Respondent’s evidence has been inconsistent and fails to support the claim by the Respondent that there was no employment relationship at all material times.
In particular the Claimant has shown that he invited the Respondent to a conciliatory process which the Respondent failed to take advantage of. The letter Ref. No. AOJ/JGG/2010 dated 29. 06. 2010 is clear evidence of an ongoing dispute between the parties and concluding in failed conciliatory process.
This Court will encourage employers and employees to amicably resolve their disputes through the conciliatory process through statutory and other mechanisms. The statutory process involving the Labour Officers is not the only path to pursue conciliation and amicable settlement.
In the instant case the Respondent did not take advantage of the conciliation process and the Claimant has proved his case on a balance of probabilities.
Accordingly the Court enters judgment for the Claimant as prayed for in the statement of the claim dated 6th January 2011.
A decree shall issue accordingly.
Delivered in Court on 28th August, 2012 in the presence of both parties; the Claimant and Ms Macheru Advocates for Respondent.
DATEDand DELIVERED at Nairobi this 28th day of August, 2012.
Byram Ongaya
JUDGE