[2018] KEELRC 2305 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS

COURT OF KENYA AT NYERI

CAUSE NO. 227 OF 2017

JOSEPH MWANGI KARIUKI.......................................................……CLAIMANT

VERSUS

THE DIRECTOR, ROSTEVE ENTERPRISES…….......................RESPONDENT

JUDGMENT

1. The Claimant filed suit on 27th June 2017 seeking resolution of the dispute he framed as refusal, failure and neglect to pay the Claimant benefits. He averred that he was employed as a chef by the Respondent on 15th August 2015 at a basic salary of Kshs. 8,000/- without house allowance till his dismissal on 4th March 2017. It was pleaded that he worked for 24 hours at a time by reporting at 8. 00am and leaving the next day at 8. 00am. He averred that the Respondent failed to pay his September and October 2016 salaries. He thus sought payment of unpaid salary, one month’s notice, severance pay, annual leave, pro rata leave for 5 months, underpayment of wages, underpayment of house allowance, compensation and costs of the suit.

2. The Respondent filed a response to claim and in the response denied that the Claimant had ever been in its employ at all or that he worked for the hours stipulated in the claim. The Respondent averred that it was physically impossible for anyone to work for 24 hours as alleged by the Claimant and reiterated that it kept detailed employment records of its employees and that the Claimant was not one of them. The Respondent denied the averments of the Claimant on the benefits claimed and due save as to add that the Claimant having absconded from duty, no payments were due to him. The Respondent averred that if there was any dispute, which was denied, the same was heard by the Labour officers in Embu and the Claimant’s claim dismissed.

3. The Claimant filed a reply to the Respondent’s response to claim on 26th September 2017 and averred that the Respondent did not issue letters of employment and underpaid the Claimant. He averred that he did not abscond duties and that the Labour officer ordered payment of dues to him, a directive not adhered to by the Respondent. It was pleaded that the Claimant did not resign but was terminated without notice or pay in lieu of notice. That response marked the close of pleadings and directions were taken on 22nd November 2017 and the hearing of the case set for 31st January 2018.

4. At the date set for hearing, only the Claimant attended despite the date having been fixed in Court in presence of counsel for each of the parties. He testified under oath that he was underpaid and worked for spans of 24 hours at a time, break for a day and resume for another 24 hour session. He stated that he had sued the erstwhile employer for dismissal without notice and underpayment of wages. He stated that he did not have any payment of house allowance.

5. The Claimant was from the evidence and the pleadings of parties an employee of the Respondent. He earned Kshs. 8,000/- a month as a chef. The Regulation of Wages (General Amendment) Order 2015 provided that a cook in areas other than Nairobi, Mombasa, Kisumu, Mavoko, Ruiru and Limuru would earn Kshs. 6,752/- a month. He earned Kshs. 8,000/- whilst working in Embu and therefore there was no underpayment. He did not prove that he was at work for 24 hours a day nor did he indicate what he did for 24 hours as a cook. The Claimant was stated to have absconded from work and he asserted that he was dismissed. The Respondent averred that the Claimant was paid his dues. That was not backed by any documentation despite the averments in the reply to claim. If payments had been made, there was no proof of payment of the salary for September and October 2016 which is Kshs. 16,000/-. The Court noted the dilatoriness of the Respondent who waxed both hot and cold by approbating and reprobating. Was the Claimant its employee or not? When the Respondent’s averments regarding the alleged absconding from work and payment of all dues to the Claimant are reflected against the denials that the Claimant was an employee confirm that there is some truth in the averment by the Claimant that he was the employee of the Respondent. I find that no notice was given prior to dismissal and the Claimant would be entitled to recover Kshs. 8,000/- as payment in lieu of notice. The Claimant did not prove that he did not go on leave. He did not also prove that he did not receive house allowance as the sum paid would cater sufficiently for the basic salary plus 15% house allowance for a cook in Embu. The Claimant is thus successful to some degree and is entitled to a judgment as follows:-

a. Kshs. 16,000/- being salary for September and October 2016

b. Kshs. 8,000/- as payment in lieu of notice

c. Kshs. 1,000/- ordered by court on 22nd November 2017

d. Interest on the sums in a), b) and c) above at court rates from date of judgment till payment in full.

e. Certificate of service in terms of Section 51 of the Employment Act.

There will be no order as to costs of the suit.

It is so ordered.

Dated and delivered at Nyeri this 16th day of February 2018

Nzioki wa Makau

JUDGE