[2018] KEELRC 1371 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 735 OF 2014

JOSEPH SAMANAYO......................................CLAIMANT

- VERSUS -

METAL CROWNS LTD...............................RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 27th July, 2018)

JUDGMENT

The claimant filed the statement of claim on 06. 05. 2014 through Oduor Henry John Advocates. The claimant prayed for judgment against the respondent for:

a. 12 months salary in lieu of notice on gross income at Kshs. 90,000. 00 x 12 months Kshs.1, 080, 000. 00.

b. 12 months compensation for disturbance by terminating the services of the claimant unlawfully Kshs.1, 080, 000. 00

c. Payment of annual leave for 12 months of notice per appointment letter Kshs. 103, 846. 20.

d. Pay and fully settle bank loan that the respondent guaranteed the claimant Kshs.2, 620, 100. 00.

e. Payment of salary in arrears for the months the claimant has been out of employment from 10th January 2013 to the date as the Honourable Court will determine and due to wrongful or unlawful termination.

f. Payment of accumulated leave days for the period the claimant has been out of employment as will be determined by the Honourable Court.

g. Severance pay of 15 days for each completed year of service (2 years) Kshs.90, 000. 00.

h. Compensation for damages suffered by the claimant from the time of the wrongful and unlawful retirement.

i. Costs of the suit plus interest.

j. Any other money that is legally due to the claimant.

k. The respondent to pay costs of the suit.

l. The respondent’s director’s work permits be revoked, level lawful penalties for racial and abuse offences committed herein.

m. Such further or other reliefs as may be appropriate in the circumstances.

The response to the statement of claim was filed on 11. 07. 2014 through Morara Apiemi & Nyangito Advocates. The respondent prayed that the claimant’s claim should be dismissed with costs.

There is no dispute that the respondent employed the claimant as an imports and exports officer effective 10. 03. 2010 at Kshs.90, 000. 00 per month.

The 1st issue for determination is whether the termination of the claimant’s contract of employment was unfair. The claimant’s evidence was that after he was employed he served smoothly for about 2 years. Later a new director known as Kurdip took over. On 06. 01. 2013 the claimant reported on duty at 8. 00am. The human resource officer summoned him and told him that his services were no longer required because the director had said that the claimant would no longer work for the respondent. Later he was given the letter of termination of employment dated 10. 01. 2013 stating that his employment had been terminated effective 09. 01. 2013 on account of frequent leave demands that affected the claimant’s work leading to low output. He was to be paid final dues being salary up to 09. 01. 2013; one leave day due; 2 months pay in lieu of termination notice; and less liabilities to the respondent. The claimant testified that after the verbal termination on 06. 01. 2013, on 07. 01. 2013 he went for a letter and he received the letter dated 06. 01. 2013 being a warning letter on account of severally being absent, frequent leave requests and truancy whereby the claimant left the place of work without informing anyone with a view of doing own business. The letter further stated that the claimant had indicated that he was vying for a political seat in his home area of Mogotio in Nakuru and he had brought flyers in the office to that effect. The letter stated that such must give an indication to the claimant’s reasons for frequent absence at work. The letter stated that the warning was being issued so the claimant would improve. The claimant testified that on 10. 01. 2013 he got the actual termination letter.

The respondent did not call a witness. The Court finds that the claimant was dismissed verbally on 06. 01. 2013 followed with a warning on 10. 01. 2013 and the termination letter of 10. 01. 2013. The flow of events was such that the claimant was not given a notice and a hearing prior to the termination as per section 41 of the Act. Further the respondent did not testify to establish the reason for the termination as envisaged in section 43 of the Act. The Court returns that the termination was unfair for want of a valid reason and due procedure.

The 2nd issue for determination is whether the claimant is entitled as prayed for. The Court makes findings as follows:

a. The claimant prays for 12 months salary in lieu of notice on gross income at Kshs. 90,000. 00 x 12 months Kshs.1, 080, 000. 00. The claimant was paid for 2 months in lieu of notice per contract and the prayer will fail as unjustified.

b. The claimant has prayed for 12 months compensation for disturbance by terminating the services of the claimant unlawfully Kshs.1, 080, 000. 00. The evidence was that the claimant was frequently absent from work on account of leave. The Court returns that by that reason and conduct he substantially contributed to the termination. The Court finds that the claimant therefore substantially interrupted work and contributed to his termination. The Court places that contribution at 100% and the claimant will not be awarded compensation under section 49 of the Employment Act, 2007.

c. The claimant prayed for payment of annual leave for 12 months of notice per appointment letter Kshs. 103, 846. 20. The claimant testified that he took leave frequently and it must have amounted to over 21 days of leave per annum. The prayer will therefore fail.

d. The claimant prayed for pay and fully settle bank loan that the respondent guaranteed the claimant Kshs.2, 620, 100. 00. The claimant did not show and exhibit the alleged guarantee agreement and the prayer will fail as unfounded. Similarly, the prayer for the respondent to pay and fully settle accumulated interest on the loan that the respondent allegedly guaranteed the claimant will fail.

e. The claimant prayed for payment of salary in arrears for the months the claimant has been out of employment from 10th January 2013 to the date as the Honourable Court will determine and due to wrongful or unlawful termination. Further he prayed for payment of accumulated leave days for the period the claimant has been out of employment as will be determined by the Honourable Court. The claimant has not justified the prayer as he is entitled to take up alternative employment. The leave claimed was obviously not earned per section 28 of the Employment Act, 2007. The prayers will fail as they are unfounded.

f. This was not a case for redundancy under section 40 of the Act and severance pay of 15 days for each completed year of service (2 years) Kshs.90, 000. 00 as prayed will fail.

g. The Court returns that all other prayers as prayed for will fail as unfounded or unjustified.

In conclusion the claimant’s suit is hereby dismissed with orders that each party to meet own costs of the suit.

Signed, datedanddeliveredin court atNairobithisFriday 27th July, 2018.

BYRAM ONGAYA

JUDGE