[2017] KEELRC 1095 (KLR)
The court found that the Claimants were employees of the Respondent and that their employment was terminated on 13th March 2013 without notice or just cause. The Respondent failed to participate in the proceedings or provide any justification for the terminations as required by law. The Claimants provided sufficient...
Source-derived case information.
- Citation
- [2017] KEELRC 1095 (KLR)
- Parties
- Applicant: Leah Ngala Tewa, Mary Munyazi Chogo, Nigandi Juliet Robert, Mashaka Josphine Johnson, Felix Benja Mumba, Orlin Murira Chengo, Elvis Mwamumba Chisiwa, Chadi Randu Kombe, Mwinyi Mwachinga Baya, Mwathethe Ngua Kalama, Happy Pingano Chengo, Jackson Rico Mwinyi, Baya Fondo Ndaa, David Chivatsi Dzombo; Respondent: ARM Cement Limited [Formerly Athi River Mining Limited]
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 139 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in full for the Claimants.
- Legal Topics
- Unfair Termination, Terminal Dues, Notice Pay, Annual Leave Pay, Service Pay, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leah Ngala Tewa, Mary Munyazi Chogo, Nigandi Juliet Robert, Mashaka Josphine Johnson, Felix Benja Mumba, Orlin Murira Chengo, Elvis Mwamumba Chisiwa, Chadi Randu Kombe, Mwinyi Mwachinga Baya, Mwathethe Ngua Kalama, Happy Pingano Chengo, Jackson Rico Mwinyi, Baya Fondo Ndaa, David Chivatsi Dzombo
Applicant
ARM Cement Limited [Formerly Athi River Mining Limited]
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimants' employment was unfair under the Employment Act 2007.
- 2 Whether the Claimants are entitled to terminal dues and compensation as pleaded.
- 3 Whether the Respondent complied with statutory requirements for notice and justification of termination.
Ratio Decidendi
The court found that the Claimants were employees of the Respondent and that their employment was terminated on 13th March 2013 without notice or just cause. The Respondent failed to participate in the proceedings or provide any justification for the terminations as required by law. The Claimants provided sufficient documentary evidence, including NHIF records and witness statements, to prove their employment and the circumstances of termination. In the absence of any rebuttal or employment records from the Respondent, the court accepted the Claimants' account and found the termination to be unfair under the Employment Act 2007. The court awarded the Claimants compensation equivalent to...
Court Disposition
Claim allowed in full for the Claimants.
Orders
- It is declared termination was unfair.
- The Respondent shall pay to the Claimants the total sum of Kshs. 2,002,528 as detailed at paragraph 6 of the Statement of Claim.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 139 OF 2016
BETWEEN
1. LEAH NGALA TEWA
2. MARY MUNYAZI CHOGO
3. NIGANDI JULIET ROBERT
4. MASHAKA JOSPHINE JOHNSON
5. FELIX BENJA MUMBA
6. ORLIN MURIRA CHENGO
7. ELVIS MWAMUMBA CHISIWA
8. CHADI RANDU KOMBE
9. MWINYI MWACHINGA BAYA
10. MWATHETHE NGUA KALAMA
11. HAPPY PINGANO CHENGO
12. JACKSON RICO MWINYI
13. BAYA FONDO NDAA
14. DAVID CHIVATSI DZOMBO.............................................................................CLAIMANTS
VERSUS
ARM CEMENT LIMITED [FORMERLY ATHI TIVER MINING LIMITED].........RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
Otieno Asewe & Company Advocates for the Claimants
No appearance for the Respondent
____________________________
JUDGMENT
1. The 14 Claimants filed this Claim on 19th February 2016. They also filed their individual Witness Statements on the same date, alongside other documents, which include national Identity Cards and National Hospital Insurance Account Statements.
2. They state they were employed by the Respondent Cement Manufacturer as Quarry Workers. They were employed on diverse dates ranging between January 2000, and October 2009.
3. Their contracts were terminated by the Respondent on the same date, 13th March 2013. They allege termination was without notice and just cause. Natural justice and the protections guaranteed to them under Section 41, 43 and 45 of the Employment Act 2007, were denied to them. They each claim against the Respondent for:-
a) 1 month salary in lieu of notice.
b) Annual leave pay for the period served.
c) Service pay.
d) The equivalent of 12 months’ salary in compensation for unfair termination.
4. The highest paid Claimant, at the time of termination, was Claimant Number 3, Nigandi Juliet Robert, who earned a salary of Kshs. 7,841. The lowest earner was Claimant Number 6, Orlin Murira Chengo, at Kshs. 4,368. Others earned various figures in between what was paid to these 2 Claimants.
5. The 14 Claimants pray for Judgment against the Respondent for a total amount of Kshs. 2,002,528, comprising terminal dues and compensation. Details for each Claimant are given under paragraph 6, of the Statement of Claim.
6. There is on record an Affidavit of Service, showing the Notice of Summons and the Statement of Claim were served upon the Respondent, on 18th February 2016. The Affidavit shows the Respondent receive Court Processes, signed and date stamped copies in acknowledgement, through its Human Resource Manager, at its Offices along Mazeras-Kaloleni Road. Hearing Notice was similarly served. There was nothing filed by the Respondent challenging the Claim. There was no attendance in Court by the Respondent, at any turn. The Claimants applied to the Court on 14th November 2016, and were allowed, to have the Claim considered and determined on the strength of the record. They confirmed the filing of their Closing Submissions in Court on the 1st December 2016.
The Court Finds:-
7. The Clamants have persuaded the Court, through their Pleadings, Documents, Witness Statements and Submissions that they were employed by the Respondent Company as Quarry Workers on the dates indicated in the Statement of Claim.
8. The N.H.I.F Member Data Summaries exhibited by the Claimants confirm they were Employees of the Respondent.
9. Their respective contracts were terminated by the Respondent on 13th March 2013. They have shown termination was without notice and/or just cause. They were not told why the decision to terminate was made. They have shown termination was unfair as required under Section 47 of the Employment Act 2007.
10. The Respondent did not participate in the proceedings at all. The result is that the Respondent did not justify termination at all, as required under Section 47 of the Employment Act 2007.
11. The Claimants are granted the equivalent of 12 months’ salary each, as detailed in the Claim.
12. The Court is persuaded, in the absence of employment records from the Employer, that the Claimants are owed terminal dues as pleaded.
IN SUM, IT IS ORDERED:-
a) It is declared termination was unfair
b) The Respondent shall pay to the Claimants the total sum of Kshs. 2,002,528 as detailed at paragraph 6 of the Statement of Claim.
c) Certificates of Service to issue.
d) Interest granted on the amount above at 14% per annum from the date of termination, 13th March 2013, till payment is made in full.
e) Costs to the Claimants.
Dated and delivered at Mombasa this 23rd day of June 2017
James Rika
Judge