[2019] KEELRC 1493 (KLR)
The court found that the respondent failed to discharge its statutory burden to prove that the termination of the claimants' employment was lawful. The claimants' evidence was uncontroverted, and the respondent neither appeared nor filed a defence. The court accepted the claimants' account that they were not paid...
Source-derived case information.
- Citation
- [2019] KEELRC 1493 (KLR)
- Parties
- Applicant: Kioki Musyoki; Applicant: Gilbert Mwaliwa; Respondent: Kibe Muigai Holdings Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1623 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimants.
- Judges
- DI Wasike
- Legal Topics
- Unlawful Termination, Salary Arrears, Notice Pay, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kioki Musyoki
Applicant
Gilbert Mwaliwa
Applicant
Kibe Muigai Holdings Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent unlawfully terminated the claimants' contracts of service.
- 2 Whether the claimants are entitled to salary arrears, notice pay, and compensation for unlawful termination.
Ratio Decidendi
The court found that the respondent failed to discharge its statutory burden to prove that the termination of the claimants' employment was lawful. The claimants' evidence was uncontroverted, and the respondent neither appeared nor filed a defence. The court accepted the claimants' account that they were not paid their salaries and were unlawfully terminated under the guise of hotel renovations. As a result, the court awarded the claimants salary arrears, one month's salary in lieu of notice, and six months' salary as compensation for unlawful termination, subject to statutory deductions.
Court Disposition
Judgment for the claimants.
Orders
- Respondent to pay Kioki Musyoki KES 4,960,000 subject to taxes and statutory deductions.
- Respondent to pay Gilbert Mwaliwa KES 2,170,000 subject to taxes and statutory deductions.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 1623 OF 2015
KIOKI MUSYOKI........................................1ST CLAIMANT
GILBERT MWALIWA .............................2ND CLAIMANT
VERSUS
KIBE MUIGAI HOLDINGS LIMITED..................RESPONDENT
JUDGEMENT
1. The claimants averred that they were employed by the respondent to help set up the operations of Emerald Hotel as General Manager and Head House Keeper respectively.
2. The 1st claimant’s starting salary was Kshs 160,000/= which was to be reviewed to Kshs 250,000/= upon opening the hotel. The 2nd claimant’s was Kshs 70,000/= to be reviewed to 109,000/= upon opening of the hotel and a further housing allowance of Kshs 47,000/=. The claimants carried out their duties and responsibilities as required however the respondent did not pay the claimants stating that it was cash strapped.
3. The respondent’s officers represented to the claimants that they had sought a loan from Equity Bank (k) Limited and that they would pay the claimants all the salary and allowances arrears upon receipt of the loan. The bank advanced the respondent the money in October, 2012 but the respondent reneged on the promise to pay the claimants. Instead the respondent under the guise of closure for renovation of the hotel unlawfully terminated the claimant’s contract of service. At the time of closure, the respondent owed 1st claimant Kshs 4,400,000/= and Kshs 2,096,405/= to the 2nd claimant.
4. The respondent was served with the claim herein but neither entered appearance nor filed a defence to the claim. The matter was therefore certified as undefended and proceeded for hearing as such on 26th April, 2018.
5. The burden of proof that a lawful termination of employment has occurred rests upon the employer. The respondent did not refute the claimant’s claim. The court therefore enters judgment against the respondent as follows:
Kioko Musyoki
a. One month’s salary in lieu of notice 160,000
b. Salary arrears 3,840,000
c. Six months’ salary compensation
for unlawful termination 960,000
4,960,000
Gilbert Mwaliwa
a. One month’s salary in lieu of notice 70,000
b. Salary arrears 1,680,000
c. Six months’ salary compensation
for unlawful termination 420,000
2,170,00
d. Costs
6. The award shall be subject to taxes and statutory deductions.
7. It is so ordered.
Dated at Nairobi this 17th day of May 2019
Abuodha J. N.
Judge
Delivered this 17th day of May 2019
Abuodha J. N.
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.