[2018] KEELRC 1402 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 1047 OF 2013

JUSTIN ASIACHI........................................................CLAIMANT

- VERSUS -

SUNRIPE (1976) LIMITED................................. RESPONDENT

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

JUDGMENT

The claimant filed the statement of claim on 12. 07. 2013 through Rachier & Amolo Advocates. The claimant prayed for judgment against the respondent for:

a) Payment of Kshs. 901, 345 being:

1) 14 days balance leave for 2009 Kshs. 76, 048. 00.

2) 21 days leave for 2010 Kshs. 114, 072. 00.

3) Pro rate leave for 2011 Kshs. 76, 048. 00.

4) Salary for August 2011 Kshs. 141, 242. 00.

5) 14 public holidays worked between 2009-2011 and not paid Kshs. 76, 048.

6) 55 Sundays worked and not paid Kshs.517, 887. 00.

7) Less amount paid in advance on the last working day Kshs. 100,000. 00.

b) Interest on (a) above at Court rates.

c) A certificate of service to the claimant in terms of the Employment Act, 2007.

d) Costs and interest of the claim.

The statement of reply to the claim was filed on 12. 05. 2015 through Otieno Arum & Company Advocates. The respondent prayed that the claimant’s suit be dismissed with costs and for any other relief the Honourable Court may deem fit to grant.

There is no dispute that the respondent employed the claimant on 04. 01. 1999 as a quality controller at the respondent’s Cargo Village at J.K.I.A. The claimant’s job entailed quality control and assurance on fresh produce received, processed, exported and rejected. On 24. 05. 2001 the claimant was promoted to Assistant Pack House Manager and to the Pack House Manager on 01. 09. 2001. Further there is no dispute that on 28. 07. 2011 the claimant served the respondent a notice of intention to resign as per the terms of the contract of service. The notice was received and acknowledged by the respondent as per the letter dated 13. 08. 2011. The claimant’s case is that the respondent has refused to pay the terminal dues now claimed in this suit. The respondent’s case is that it has not refused or declined to pay the final dues.

The letter of notice to resign was dated 28. 07. 2011 and resignation was to take effect on 24. 08. 2011 as per the letter.

The only issue for determination is whether the claimant is entitled to the prayers as made. The Court has considered the pleadings, the evidence and the submissions and makes findings as follows:

1) The claimant has prayed for 14 days balance leave for 2009 Kshs. 76, 048. 00. The claimant testified that as per leave form filed for the respondent 20 days of leave were paid in cash and he took the rest of the leave for 2009. The prayer will fail. In any event it was agreed between parties leave not taken would be forfeited if 2 years lapsed. The Court returns that the claim was not established on a balance of probability. It will fail.

2) The claimant prayed for 21 days leave for 2010 Kshs. 114, 072. 00. The evidence was that he had not taken the leave and the respondent’s witness confirmed as much. The prayer will succeed.

3) The prayer for pro-rate leave for 2011 Kshs. 76, 048. 00 was allowed by consent of the parties on the hearing date.

4) The evidence was that the claimant was not paid salary for August 2011 Kshs. 141, 242. 00 and the prayer is allowed.

5) The claimant prays for 14 public holidays worked from 2009 to 2011 and not paid Kshs. 76, 048. 00. The claimant stated that it was the respondent’s policy that the employees work on public holidays. The claimant did not testify about agreement or policy on work done on such holidays. The Court finds that the respondent’s evidence was that the claimant never worked as was claimed. There being no established grievance about the claim while the employment relationship subsisted, the Court returns that the claimant has failed to prove the claim. It will fail.

6) The claimant prayed for 55 Sundays worked and not paid Kshs.517, 887. 00. He testified that he worked some Sundays and not others. The Court returns that the particulars of the claim were not specifically pleaded and proved accordingly. On a balance of probability the prayer will fail. Further, there was no grievance established to have existed about the claim during the employment.

The claimant is awarded Kshs. 331, 362. 00 less Kshs. 100, 000. 00 the claimant admitted was paid after termination making a net pay of Kshs. 231, 362. 00.

In conclusion judgment is hereby entered for the claimant against the respondent for:

1) The respondent to pay Kshs. 231, 362. 00to the claimant by 01. 09. 2018 failing interest to be payable thereon at Court rates from the date of the suit till full payment.

2) The respondent to pay costs of the suit.

Signed, datedanddeliveredin court atNairobithisFriday 27th July, 2018.

BYRAM ONGAYA

JUDGE