[2021] KEELRC 340 (KLR)
The court found that the claimant was unfairly terminated because the reason for termination was his raising of a legitimate grievance regarding salary deductions, which is protected under section 46(g) of the Employment Act, 2007. The court considered the claimant's length of service, the fixed-term nature of his...
Source-derived case information.
- Citation
- [2021] KEELRC 340 (KLR)
- Parties
- Claimant: Kiptoo Hassan Chumba; Respondent: Jagged Alliance Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 556 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Summary Dismissal, Notice Pay, Compensation for Termination, Fixed Term Contracts, Salary Deductions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiptoo Hassan Chumba
Claimant
Jagged Alliance Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was unfairly terminated contrary to the Employment Act, 2007.
- 2 Whether the claimant is entitled to compensation for unfair termination and other terminal dues.
- 3 Whether the deduction of Kshs. 12,000.00 from the claimant's salary was lawful.
Ratio Decidendi
The court found that the claimant was unfairly terminated because the reason for termination was his raising of a legitimate grievance regarding salary deductions, which is protected under section 46(g) of the Employment Act, 2007. The court considered the claimant's length of service, the fixed-term nature of his contract, and his desire to continue in employment. The court awarded four months' compensation plus one month pay in lieu of notice, totaling Kshs. 170,568.00 less PAYE, and declined the claim for pay for the unexpired tenure as unjustified. The deduction of Kshs. 12,000.00 was not justified by the respondent. Costs were awarded to the claimant.
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant Kshs. 170,568.00 (less PAYE) by 24.12.2021, failing which interest shall accrue at court rates from the date of judgment until full payment.
- The respondent shall pay the claimant's costs of the suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT MOMBASA
CAUSE NO. 556 OF 2017
KIPTOO HASSAN CHUMBA......................................................................CLAIMANT
VERSUS
JAGGED ALLIANCE LIMITED...........................................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 26th November, 2021)
JUDGMENT
The claimant filed the memorandum of claim on 12. 07. 2017 in person. His case is that the respondent employed him as a driver on 30. 05. 2016 at Kshs. 28, 427. 42 per month. Further, on 29. 11. 2016 his contract was terminated unfairly without notice and a hearing. His case was that as at termination the claimant had a grievance that the respondent had deducted his salary with Kshs. 12, 000. 00 without notice and explanation. He was not paid terminal dues and the demand notice was not replied. He claimed for:
a) One-month notice Kshs. 28, 427. 00.
b) Pay for remainder of contract duration Kshs.170, 564. 52.
c) Compensation for unfair termination Kshs. 341, 129. 04.
d) Total claim Kshs. 540, 120. 98.
e) Costs plus interest of the suit.
The respondent filed the response to the claim on 13. 09. 2017 through Muthee Soni & Associates Advocates. The respondent denied all averments in the memorandum of claim and prayed that the suit be dismissed with costs.
On 08. 10. 2018 the claimant appointed Thabit, Wampy & Kitonga Advocates to act on his behalf. Despite service of a hearing notice, the respondent failed to attend. The claimant testified to support his case. He testified that the respondent’s manager verbally terminated him on 20. 11. 2016 when he was deducted Kshs. 12, 000. 00 and no explanation was given. The claimant relied on the material on record without filing final submissions. The Court finds as follows:
1. The Court finds that the respondent employed the claimant and the exhibited pay slip confirms monthly gross pay at Kshs.28, 428. 00.
2. The claimant has by his evidence established that he was terminated on account of raising a grievance about the deduction of his salary. The Court finds the termination was unfair because the reason was unfair per section 46(g) of the Employment Act, 2007 namely raising a grievance upon good foundation. The unlawful reason aggravated the unfairness. The Court has considered the further factors in section 49 of the Act. He desired to continue in employment. He had served 6 months of his 12 months fixed term contract. So he had 6 months to go. In consideration of those factors, he is awarded 4 months’ compensation plus one month pay in lieu of notice (under section 35 of the Act) making Kshs. 170, 568. 00 to be paid less PAYE. The Court considers the compensation as sufficient and in absence of any factor attributable to the respondent making the claimant unable to secure alternative employment after the termination, the prayer for pay for unexpired tenure is declined as not justified at all. The claimant is entitled to the costs of the suit.
In conclusion judgment is hereby entered for the claimant against the respondent for:
1) Payment of Kshs. 179, 568. 00 (less PAYE) by 24. 12. 2021 failing interest to be payable thereon at Court rates from the date of this judgment until full payment.
2) The respondent to pay the claimant’s costs of the suit.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT MOMBASA THIS FRIDAY 26TH NOVEMBER, 2021.
BYRAM ONGAYA
JUDGE