[2018] KEELRC 50 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT OF KENYA

AT NAIROBI

CAUSE NO. 2134 OF 2012

(Before D. K. N. Marete)

JULIUS NJAGI MBUI......................................................CLAIMANT

VERSUS

KENYA NUT COMPANY LIMITED........................RESPONDENT

JUDGEMENT

This matter was originated by way of a Memorandum of Claim dated 19th October, 2012. The issue in dispute is therein cited as;

(Claim for benefits and dues pursuant to unfair termination from employment)

The respondent in a Response to the claim dated 15th April, 2013 denies the claim and prays that it be dismissed with costs.

The claimant further raises a Reply to Defence dated 9th May, 2013 in which he reiterates his claim.

The claimant’s case is that he was employed by the respondent as a casual worker in August, 1993 at a salary of Kshs.5,500. 00 per month. He worked from August 1993 to 20th March, 2009.

The claimant’s further case is that in May, 2009 the respondent unfairly and without lawful cause and also in total breach of the employment contract orally terminated his employment. She also has neglected to pay the claimants terminal dues amounting to Kshs.990,000. 00

His further case is that the respondent has had due notice of this case.

He claims for;

a) Service 15 years x 5,500 x 12 =Shs.990,000. 00

b) Holidays – Sundays 15 years – Salary for one

day 192 x 720 =Shs.151,920. 00

c) Notice for three months 5, 500 x 3 =16,500. 00

He prays as follows;

a) Shs.990,000/= being service for 15 years.

b) Shs.151,920/= being worked holidays

c) Shs.16,500/= being lack of Notice for 3 months

d) Damages for unfair termination

e) Such other dues as may be found due to the claimant

f) Any other relief(s) as the Court may deem fit to grant

g) Costs and interest

The respondent’s case is a denial of the claim.

The respondent’s further case is a recital of a case of lawful termination of Employment and payment of terminal dues thereof.

She avers that the claimant was in breach of section 44 of the Employment Act, 2007 by failing to carry out his express and implied duties. He had caused the loss of parchment coffee on 12th May, 2009 when he left the coffee drying area unguarded.

The claimant in reply to the defence denies that he was lawfully dismissed or even paid his terminal dues and benefits. He also denies breach of section 44of the Employment Act, 2007 by failing to carry out his express and implied duties.

The matter came to court variously until 16th October, 2018 when it was heard inter partes.

At the hearing, CW1- Julius Njagi Mbui the claimant testified in reiteration of his case. This was that he worked for the respondent upto May, 2009 as security officer at a salary of Kshs.5,500. 00.

The claimant testified that he had filed a list of documents dated 19th October, 2009 and wished this adopted as his evidence in court.

He further testified that he was summarily dismissed and never afforded a hearing date. He was not issued with any notice either. On cross-examination, CW1 testified that he was dismissed and do not understand why this was by a letter dated 20th May, 2009. He was not paid any terminal dues but only the salary for May. On the same cross-examination, CW1 that he made a certificate of clearance dated 26th June, 2009 and was paid kshs.12,380. 00 by a cheque dated 17th September, 2009.

The claimant further testified that he worked on public holidays and sundays and was paid for leave and overtime. Interestingly, he on the same note testified that he was not paid overtime for fifteen years. He signed a clearance form and did not do a demand. On re-examination, CW1 testified reiterated his earlier evidence that he was paid from May 2009 and was not paid any terminal dues. He further testified that he did not agree to the computation of his terminal dues and sought for justice in this case.

The issues for determination therefore are

1. Whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful?

2. Whether the claimant is entitled to the relief sought?

3. Who bears the costs of this claim?

The 1st issue for determination is whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful. The claimant did not file any written submissions in support of his case.

The respondent put in written submissions dated 29th October, 2018 in which she reiterates her case of lawful termination of employment. The respondent submits that the claimant was lawfully terminated from employment through summary dismissal and a breach of section 44 of the Employment Act, 2007 for causing loss to the respondent’s property by leaving the coffee drying area unguarded.

The respondent’s further case is a citation of the contradictory testimony of the claimant at the hearing on 16th October, 2018. Here, the claimant testified that he was dismissed by letter which is contrary and contradictory to his averment of oral dismissal at paragraph 4 of the Memorandum of Claim.

On cross-examination, he admits that upon receipt of the letter of summary dismissal, he went to the respondent’s offices and signed a certificate of clearance dated 26th June, 2009. It is upon such clearance that he was paid and received a cheque for Kshs.12,380. 00 as his terminal and final dues. He confirmed that he signed for this on re-examination.

The claimant admitted that the amount of Kshs.12,380. 00 was all inclusive and total of his terminal benefits. He, however, added that he was not paid for the other fifteen (15) years he had worked.

The scrutiny of the evidence of the claimant displays inconsistency in his testimony at trial. This time he admits one thing, the other time he denies the same. Overall, his case and testimony at trial do not in any way indicate or display a case of unlawful termination of employment. He does not rebut the respondent’s case of neglect and absconding duty thereby occasioning theft of coffee parchment belonging to the respondent. His case must therefore fail. I therefore find a case of lawful termination of the employment of the claimant by the respondent and hold as such.

The 2nd issue for determination is whether the claimant is entitled to the relief sought. He is not. Having lost on a case of unlawful termination of employment, he becomes disentitled to the relief sought.

I am therefore inclined to dismiss the claim with orders that each party bears their costs of the same.

Dated and signed this 20th day of December 2018.

D.K. Njagi Marete

JUDGE

Delivered and signed this 20th day of December, 2018.

Maureen Onyango

PRINCIPAL JUDGE

Appearances

1. Mrs. Njiru instructed by Lucy Njiru & Company Advocate for the claimant.

2. Mrs. Oloo holding brief for Muganda instructed by Mbugwa, Atudo & Macharia Advocates for the respondent.