[2018] KEELRC 2281 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OFKENYA

AT NAIROBI

CAUSE NUMBER 1394 OF 2015

KENNETH YIMBO NDEDDA.....................................CLAIMANT

VERSUS

JIMMY KIMONDO..........................................1ST RESPONDENT

ANDY WATT.....................................................2ND RESPONDENT

JAMES KINYUA..............................................3RD RESPONDENT

JOHN KIARIE(Suing them in their capacity as

Directors of Karen Country Club.......................4TH RESPONDENT

JUDGEMENT

1. The claimant herein averred that he was employed by the Respondents on 1st January, 2014 as Green keeper in the Golf Estate Department a monthly salary of Kshs 140,000/= which was later increased to Kshs 154,000.

2. According to him, he performed his duties diligently and worked long hours in order to meet deadlines and ensure success of respondent’s activities. On 25th November, 2014 he was appraised by his department and scored a rating of 80% which could have earned him a salary increment but this did not happen. He also averred that despite working for long hours he was never paid overtime and granted off-days nor paid in lieu during the years served.

3. On or about the 16th January, 2015 the respondent terminated the claimant’s employment on grounds that his performance was below par.

4. The respondents did not file a defence to the claim although they were duly served. The respondent’s counsel Ms Oyombe however filed submissions in which she stated that the respondents were directors of Karen Country club (the 4th respondent who was the claimant’s employer. According to counsel the claimant was not employed directly by the respondents.

5. Counsel further submitted that from the claimants termination letter there existed valid reasons to dismiss the claimant from employment. From the termination letter, the claimant was informed of his poor performance insubordination and failure to perform his duties. Further that prior to termination the claimant was given an opportunity to explain himself. In his appeal letter the claimant admitted that he was summoned by the General Manager and Golf Estate superintendent and informed of the intention to terminate his services hence he was given an opportunity to defend himself.

6. The respondents never filed any defence to the claim nor filed any documents to refute the claimant’s allegations. As a matter of law however the claimant suit against 1st, 2nd and 3rd respondent will be dismissed since the 4th respondent is a body corporate capable of suing and being sued in its own name.

7. The letter of dismissal issued to the claimant attached to the memorandum of claim as appendix 5 stated that the claimant was employed on at will basis and that the respondents did not have an obligation to give reasons for their decision. This is erroneous since under the Employment Act, an employee is entitled to be given reasons why the termination of his or her services was being considered and afforded an opportunity to defend himself and or offer an explanation why the decision to dismiss him should not be taken.

8. The dismissal letter although details the reasons why the decision to dismiss was taken does not refer or allude to any disciplinary hearing prior to the dismissal.

9. This court will hold a dismissal unfair even where the reasons for such dismissal was valid and justifiable if it is proved as is the case here that such employee was not afforded a reasonable opportunity to defend himself against the allegations for which his dismissal was being considered.

10. The court therefore finds and holds that the termination of the claimant’s services was unfair.

11. The court therefore enters judgement against the respondents as follows:

a. Three months salary in lieu of notice 462,000

b. Salary up to 16th January, 2015 82,133

c. Leave earned but not utilized for three years 462,000

d. 10 months salary as compensation

for unfair termination 4,620,000

e. Costs of the suit

Total 5,626,133

12. Items (a) (b) and (c) are subject to statutory deductions and subject to any terminal dues already paid to the claimant upon the termination of his services. Other heads of claim are found without merit and are hereby disallowed.

13. It is so ordered.

Dated at Nairobi this 16th day of February, 2018

ABUODHA J. N.

JUDGE

Delivered this 16th day of February, 2018

In the presence of:-

..............................................for the claimant

.........................................for the Respondent

ABUODHA J. N.

JUDGE