[2018] KEELRC 1354 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 1808 OF 2013

KILLYON OPARO WAMAKOWE............CLAIMANT

- VERSUS -

AMOS WANDAGO....................................DEFENDANT

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

JUDGMENT

The claimant filed on 11. 11. 2013 the memorandum of claim in person. The claimant prayed for judgment against the respondent for:

a) The payment of Kshs. 640, 000. 00 as particularised in paragraph 5 of the claim (pay in lieu of notice Kshs.20, 000. 00; May salary Kshs.20, 000. 00; severance pay Kshs. 60, 000. 00; house allowance Kshs. 216, 000. 00; leave days Kshs. 84, 000. 00; and compensation for unfair termination Kshs. 240, 000. 00).

b) Costs of the suit.

c) Interest on (a) above.

d) Any other relief as the Court may deem just.

The respondent filed the statement of response to the claim and counterclaim on 06. 12. 2013 through Okong’o & Wandago & Company Advocates. The respondent prayed for:

a) The claimant’s claim is dismissed with costs.

b) Any sum found due to the claimant should be offset against the respondent’s counterclaim.

c) Judgment be entered for the respondent for Kshs. 2, 457, 000. 00 together with interest at Court rates from the date of judgment till payment in full.

d) The costs to the claim and counterclaim be awarded to the respondent.

e) A declaration that the claimant ought to be arrested and charged with the criminal offence of theft by servant.

The claimant owns. At all material time, 6 buses franchised with Kenya Bus Service Management Limited. There is no dispute that the respondent employed the claimant as an Assistant Manager to assist in the management of the buses at Kshs. 20, 000. 00. The respondent’s case is that he summarily dismissed the claimant under section 44(a), (c), (e) and (g) of the Employment Act, 2007 and upon complying with section 41 of the Act. The claimant had been in the employment from May 2007 to 30. 06. 2013.

The claimant was employed to offload cash from the buses from the conductors, bank the cash, and follow up any management issues with the Kenya Bus Service Management Limited.

The 1st issue for determination is whether the Court lacks jurisdiction by reason of section 3 of the Employment Act, 2007 which excludes from the Act employers and their dependants where the dependants are the only employees in a family undertaking. The evidence is that the claimant is the respondent’s relative so that the respondent calls the claimant uncle. The respondent’s enterprise was to run the buses and the workers included the claimant, the respondent’s wife, the respondent’s sister-in-law and brother –in –law. It is also clear that the claimant was not the respondent’s dependant but he had his own family and lived an autonomous life. In that circumstance that the claimant was not the respondent’s dependant, the suit is not barred under the cited section.

The 2nd issue for determination is whether the claimant’s termination from employment was unfair. The claimant testified that on 31. 05. 2013 the respondent called him in the evening. The respondent asked the claimant to organise a meeting for all crew to be held the following day. The meeting went on as scheduled. The respondent stated at the meeting that his buses incurred higher expenses than other buses. The crew explained the expenses. The respondent then told the crew that from 31. 05. 2013 they would work alone as the claimant would go on leave effective 31. 05. 2013. It was the respondent’s instruction to the crew members that any problems were to be reported to his brother-in-law. The claimant’s May salary was not paid (but has since been paid by consent recorded in court during the hearing). The claimant testified that the parties met on 12. 06. 2016 at the respondent’s office. The respondent then told the claimant that from that day he was no longer the respondent’s employee. The respondent told the claimant that he would not be paid final dues until reconciliation of the records had been done.

The respondent in his evidence confirmed the meeting of 01. 06. 2013 with the crew and the claimant. Further the respondent confirmed the meeting at his office with the claimant held on 12. 06. 2016 when the claimant went to demand his payment for May 2016. The respondent stated that at that meeting the claimant admitted he used to take some money from the respondent’s enterprise as was shown in the comparative statements between the claimant’s buses and other buses running on the same routes. The claimant apologised and promised to change his ways.

The Court has considered the evidence and returns that there is no reason to doubt that the parties agreed to separate effective 30. 05. 2013 but at the meeting held on 12. 06. 2016 and the claimant apologised for the misconduct. That position is confirmed by the claimant’s prayer for salary up to 30. 05. 2013 – so that it was clear the parties as they met on 12. 06. 2013, they must have reached the oral agreement that they separate effective 30. 05. 2013. In any event in view of the claimant’s apology and admission of the misconducts, section 43 was satisfied on validity of reason for termination and it was superfluous to invoke section 41 on notice and hearing in such circumstances of apology and agreement to separate. Thus the Court returns that the contract of service having ended by agreement and the claimant having apologised for the misconduct, the termination was not unfair.

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

a) The termination was by agreement and there is no basis for pay in lieu of notice Kshs.20, 000. 00.

b) By consent the May 2013 salary Kshs.20, 000. 00 has been paid.

c) There was no basis for the prayer for severance pay Kshs. 60, 000. 00 as the case was not a redundancy case and severance pay per section 40 of the Act was not available.

d) The claimant testified that they agreed upon a consolidated pay of Kshs. 20, 000. 00 per month being all inclusive so that the claim for house allowance making Kshs. 216, 000. 00 is therefore not justified at all. Under section 31 of the Act, the parties agreed on a consolidated pay with the element sufficient for the claimant to pay rent and there was no grievance in that regard while the contract of service subsisted.

e) The claimant prays for leave days Kshs. 84, 000. 00. The claimant’s evidence was that he worked every day except Saturday throughout the service with the claimant. That evidence was not rebutted and the claimant is awarded the pay as claimed in lieu of annual leave under section 28 of the Act.

f) The claimant prayed for compensation for unfair termination Kshs. 240, 000. 00. The Court has found that the prayer will fail because the termination was not unfair.

The 3rd issue for determination is whether the counterclaim should succeed. The Court has considered the evidence. RW testified and said he summoned the crews to confirm if the police and Nairobi City personnel could have been paid say Kshs.1, 500. 00 per day. The conductors failed to disclose the happenings as per respondent’s testimony but one driver who had allegedly been sacked by the claimant confessed that the payments were inflated by the claimant to accommodate Kshs. 700. 00 the claimant allegedly took from each bus. The respondent then stopped the claimant from handling cash effective October 2012. The Court finds that as at October 2012 the respondent knew about the alleged losses but did not take measures to compute the same and to claim in Court or surcharge the claimant accordingly. Under section 90 of the Act, such was a continuing injury which arose out of the contract of service and ceased in October 2012. The Counterclaim was filed on 12. 12. 2013 and the Court finds that the cause of action was time barred. In any event the evidence was speculative about the amount claimed. The respondent further testified that his claim was an afterthought because the claimant had asked for forgiveness and the respondent had approached the claimant’s wife and the respondent’s mother towards amicable settlement. The separation having been by agreement and the respondent having decided not to involve the police or to surcharge the claimant and the claim being not strictly computed, the court returns that the same will fail. The respondent further confirmed that the claimant’s duties did not include paying the police or Nairobi City personnel and the claimant did not prepare the way bills out of which the claims in the counterclaim were to be accounted for. Thus for the reasons stated, the counterclaim will fail.

The Court has considered that the claimant apologised for his misconduct on 12. 06. 2013 and all other circumstances of the case including the family relationship which influenced the employment of the claimant by the respondent. The Court returns that each party will bear own costs of the suit.

In conclusion judgment is hereby entered for:

a)The respondent to pay the claimant Kshs. 84, 000. 00by 01. 10. 2018 failing interest to run thereon at Court rates from today till full payment.

b) Each party to bear own costs of the suit.

Signed, dated and delivered in court at Nairobi this Friday 27th July, 2018.

BYRAM ONGAYA

JUDGE