[2017] KEELRC 191 (KLR)
The court found that the claimant failed to prove that he was unlawfully terminated, as evidence showed he last checked in at work on 31 March 2016 and could not credibly state the date of termination. The respondent's records indicated the claimant deserted duty, and the claimant did not seek a finding of unfair...
Source-derived case information.
- Citation
- [2017] KEELRC 191 (KLR)
- Parties
- Claimant: Joseph Kivati Ndiku; Respondent: Lauren International Flowers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 51 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed with costs
- Judges
- B Ongaya
- Legal Topics
- Termination of Employment, Employee Desertion, Terminal Dues, Nssf Contributions, Overtime Pay, Annual Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kivati Ndiku
Claimant
Lauren International Flowers
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unlawfully terminated or deserted employment.
- 2 Whether the claimant is entitled to terminal dues and compensatory damages as claimed.
- 3 Whether the respondent failed to remit NSSF contributions for the claimant.
Ratio Decidendi
The court found that the claimant failed to prove that he was unlawfully terminated, as evidence showed he last checked in at work on 31 March 2016 and could not credibly state the date of termination. The respondent's records indicated the claimant deserted duty, and the claimant did not seek a finding of unfair termination or compensation for the same. The court further held that the claimant, being an NSSF member, was not entitled to gratuity, and the payslips showed payment of overtime. The claimant failed to provide sufficient evidence for underpayment, holiday pay, or annual leave claims. Consequently, the court dismissed all claims for terminal dues and compensatory damages,...
Court Disposition
claim dismissed with costs
Orders
- The claimant's suit is dismissed with costs to the respondent.
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. 51 OF 2017
JOSEPH KIVATI NDIKU.......................................... CLAIMANT
VERSUS
LAUREN INTERNATIONAL FLOWERS...........RESPONDENT
(Before Hon. Justice Byram Ongaya on Wednesday, 20th December, 2017)
JUDGMENT
The claimant filed the memorandum of claim on 24. 02. 2017 through Mwaura Kamau & Company Advocates. The claimant prayed for judgment against the respondent for:
a. A declaration that the claimant is entitled to payment of his terminal dues and compensatory damages of Kshs.580, 374. 90 being Kshs.60, 628. 70 underpayment, Kshs.81, 853. 20 underpayment, house allowance Kshs. 18, 853. 20 plus Kshs. 21, 997. 90, pay for off days Kshs.64, 015. 30 plus Kshs.78, 215. 04, Kshs.17, 109. 50 in lieu of annual leave, Kshs.16, 003. 80 plus Kshs.17, 924. 20 for public holidays, overtime Kshs.84, 084. 00 plus Kshs.102, 614. 40, unpaid salary Kshs.5, 703. 10, service gratuity Kshs.12, 221. 00.
b. Interest.
c. Costs plus interest on costs.
The claimant’s case is that the respondent employed him from 25. 05. 2014 to 07. 05. 2016 as a security guard. Further on 07. 05. 2016 the claimant reported to work as usual and the claimant’s supervisor terminated the claimant’s employment on account of an alleged break-in and theft at the premises the claimant had been assigned to guard. At termination, the claimant stated that he had a clean record of service of 2 years. The claimant prayed for terminal dues as per the memorandum of claim.
The response to the memorandum of claim was filed on 21. 04. 2017 through Murage Juma & Company Advocates. The respondent prayed that the claimant’s suit be dismissed with costs. The respondent admitted that it employed the claimant from April 2014 but he was absent from duty effective 01. 04. 2016 without cause or notice and never returned to work.
The claimant alleges that he was terminated from employment whereas the respondent says that the claimant was not terminated but he deserted. Desertion of duty by an employee would amount to misconduct and the court holds that the same would be subject to disciplinary process by way of a notice and a hearing as per section 41 of the Employment Act, 2007. In the present case, the claimant has not prayed for a finding that his termination was unfair or that he should be compensated in view of the alleged termination. Accordingly, the court will not delve in to the issue of whether the termination was unfair. Nevertheless, the claimant admitted that he signed a check in register and from end of March 2016 the register as filed in court showed that he had not checked in at work. Thus the court returns that the claimant’s last day at work was on 31. 03. 2016 as per the respondent’s account. In any event, the claimant testified that he did not know the date he was told to leave job. Accordingly, the court returns that the claimant did not know the date of termination and his account was incredible.
The only pending issue for determination is whether the claimant is entitled to the remedies by way of terminal dues and as prayed for. The court makes findings as follows:
a. The claimant was a member of NSSF as per the pay slips on record. The claimant failed to file relevant NSSF statement to show the alleged failure by the respondent to remit the NSSF. As per section 35(6) of the Employment Act, 2007 the court returns that the claimant is not entitled to gratuity as claimed and prayed for.
b. The payslips on record showed that the claimant was paid overtime and the claimant did not provide evidence and submissions to justify the prayers for underpayment, pay on holidays and indeed all other prayers.
c. The respondent filed records on leave due and taken. The claimant’s prayer on pay in lieu of annual leave will therefore fail.
In conclusion, the claimant’s suit is hereby dismissed with costs.
Signed, datedanddeliveredin court atNyerithisWednesday, 20th December, 2017.
BYRAM ONGAYA
JUDGE