[2017] KEELRC 643 (KLR)
The court found that the claimant, as the legal representative of the deceased employee, had established entitlement to the claimed dues on a balance of probabilities. The employee was suspended pending a criminal case, but after acquittal, was not reinstated or paid his dues. The respondent failed to participate in...
Source-derived case information.
- Citation
- [2017] KEELRC 643 (KLR)
- Parties
- Applicant: John Mwangi Kungu being legal representative of Kungu Mwangi (deceased); Respondent: New Murarandia Farmers Co-operative Society
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 1 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- B Ongaya
- Legal Topics
- Unlawful Termination, Salary Arrears, Gratuity Entitlement, Notice Pay, Annual Leave Accrual
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mwangi Kungu being legal representative of Kungu Mwangi (deceased)
Applicant
New Murarandia Farmers Co-operative Society
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to unpaid salary, pay in lieu of notice, accrued annual leave, and gratuity following suspension and acquittal of the deceased employee.
- 2 Whether the respondent unlawfully withheld the claimant's dues after the acquittal in the criminal case.
Ratio Decidendi
The court found that the claimant, as the legal representative of the deceased employee, had established entitlement to the claimed dues on a balance of probabilities. The employee was suspended pending a criminal case, but after acquittal, was not reinstated or paid his dues. The respondent failed to participate in the proceedings or challenge the computation of dues by the Labour officer and the union. The court accepted the computation and granted judgment for the full amount claimed, together with costs and interest, as the respondent had not provided any lawful justification for withholding the payments.
Court Disposition
judgment for the claimant
Orders
- The respondent to pay the claimant Kshs. 125,650.00 by 31.12.2017, failing which interest shall accrue at court rates from the date of suit until full payment.
- The respondent to pay costs of the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO. 1 OF 2012
(Formerly Cause 136 of 2010 at Nairobi)
JOHN MWANGI KUNGU BEING LEGAL REPRESENTATIVE OF KUNGU MWANGI (DECEASED)........................CLAIMANT
VERSUS
NEW MURARANDIA FARMERS CO-OPERATIVE SOCIETY.................RESPONDENT
(Before Hon. Justice Byram Ongaya on Thursday, 19th October, 2017)
JUDGMENT
The claimant filed the memorandum of claim on 19. 02. 2010 through Mwaniki Warima & Company Advocates. The claimant prayed for judgment against the respondent for:
a) Kshs. 125, 650. 00 being unpaid salary for 6 months Kshs. 28, 950; pay in lieu of notice Kshs. 3, 900; accrued annual leave Kshs. 7, 800. 00; and gratuity Kshs. 85, 000.
b) The costs of the claim.
c) Interest.
The claimant is the legal representative of one Kungu Mwangi (deceased) who was employed by the respondent as a watchman in July 1997 at Kshs. 3, 900. 00 per month. The respondent suspended the employee from work sometimes in February 2008 on account of some theft. The employee was charged in Criminal Case No. 378 of 2008 in the Magistrate’s Court at Murang’a for the alleged offence of stealing by servant and in alternative, failing to prevent a felony. While the criminal case was pending determination the employee sought to resume duty but was not allowed in view of the subsisting suspension.
The criminal case was heard and the claimant was acquitted under section 210 of the Criminal Procedure Code per ruling delivered on 21. 05. 2008. The claimant’s trade union reported a trade dispute to the labour officer but the matter was not resolved. The Labour officer and the union computed the claimant’s dues as prayed for.
Despite service the respondent failed to enter appearance or to file a defence or final submissions.
The court has considered the material on record and in absence of a response, the court returns that the claimant has established the claim on a balance of probability and as computed by the Labour officer and the union.
In conclusion, judgment is hereby entered for the claimant against the respondent for:
a) The respondent to pay the claimant Kshs.125, 650. 00 by 31. 12. 2017 failing interest to be payable thereon at court rates from the date of the suit till full payment.
b) The respondent to pay costs of the suit.
Signed, datedanddeliveredin court atNyerithisThursday, 19th October, 2017.
BYRAM ONGAYA
JUDGE