[2018] KEELRC 856 (KLR)
The court found that the claimant had proved, on a balance of probabilities, that he was employed by the respondent, was summarily dismissed without reasonable cause or payment of terminal benefits, and that he was entitled to arrear salary, leave pay, service gratuity, notice pay, and compensation for unfair...
Source-derived case information.
- Citation
- [2018] KEELRC 856 (KLR)
- Parties
- Claimant: Leonard Mbui Opokou; Respondent: Onesmus Ngunjiri Njenga t/a Rock Air Maintenance
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1155 of 2015
- Procedural Posture
- Employment Cause / Judgment After Formal Proof
- Outcome
- Judgment for the claimant.
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Unlawful Termination, Terminal Benefits, Arrears of Salary, Leave Entitlement, Service Gratuity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Mbui Opokou
Claimant
Onesmus Ngunjiri Njenga t/a Rock Air Maintenance
Respondent
Procedural Posture
Employment Cause / Judgment After Formal Proof
Legal Issues
- 1 Whether the claimant was unlawfully and unfairly dismissed from employment.
- 2 Whether the claimant is entitled to terminal benefits including arrear salary, leave pay, service gratuity, notice pay, and compensation.
- 3 Whether the claimant proved his claims on a balance of probabilities.
Ratio Decidendi
The court found that the claimant had proved, on a balance of probabilities, that he was employed by the respondent, was summarily dismissed without reasonable cause or payment of terminal benefits, and that he was entitled to arrear salary, leave pay, service gratuity, notice pay, and compensation for unfair dismissal. The respondent failed to defend the suit or contest the claims. The court applied the relevant provisions of the Employment Act, 2007, and awarded the claimant the sums claimed for arrear salary, leave, service gratuity, notice, and compensation, dismissing only the unproven claims for house allowance and NSSF refund. The total award was Kshs. 341,000 plus interest and costs.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant Kshs.30,000 in lieu of notice.
- The respondent shall pay the claimant Kshs.161,000 as arrear salary.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1155 OF 2015
(Before Hon. Justice Mathews N. Nduma)
LEONARD MBUI OPOKOU....................................CLAIMANT
VERSUS
ONESMUS NGUNJIRI NJENGA
T/A ROCK AIR MAINTENANCE......................RESPONDENT
J U D G M E N T
1. The suit is premised on Amended Statement of Claim dated 27th October, 2015 and filed on 13th November, 2015. The Claimant seeks the following reliefs:-
a. Three (3) months salary in lieu of notice, Kshs. 90,000
b. Arrear Salary Kshs.161,000
c. 52 untaken leave days Kshs. 60,000
d. Service gratuity for 2 years Kshs. 60,000
e. House Allowance for two years Kshs. 72,000
f. Unpaid NSSF deduction for two years Kshs. 90,000
g. Damages for wrongful termination
h. Costs and interest.
2. The Respondent was served with the initial claim and entered appearance through Gitonga Kinyanjui & Co. Advocates on 21st August, 2015. On 17th November, 2015, the Respondent was served with amended statement of claim.
3. The Advocates for the Respondent received several mention and hearing notices but did not file any statement of defence nor attend court.
4. The matter proceeded to formal proof on 14th October, 2016.
5. The claimant has proved the following facts on a balance of probabilities:-
That he was employed by the Respondent from 2011 to 2013. That in January, 2014 the Claimant was summarily dismissed without any reasonable cause and without payment of any terminal benefits. The Claimant earned Kshs.30,000 a month. The Claimant entered into agreement with Respondent on 7th September, 2015 to be paid Kshs.161,000 upon acknowledging receipt of Ksh.25,000 paid on 14th April, 2015.
6. The Claimant presented the agreement before court. The amount in the Agreement is only in respect of arrear salary set out therein. The Claim for Arrear Salary is duly proved and the court awards the Claimant Kshs.161,000 arrear salary.
7. The Claimant has also demonstrated that he had not taken 52 days leave and had not been paid in lieu thereof. The court awards him Kshs.60,000 in lieu of leave.
8. The Claimant was deducted NSSF dues but same was not remitted. The court awards him one month salary being service gratuity for the two years served in the sum of Kshs.30,000. Claimant is also awarded one month’s salary in lieu of notice.
9. The claim for unpaid house allowance has not been proved and same is dismissed. Similarly, the claim for refund of NSSF dues is refused in view of the award of service gratuity.
Compensation
10. The Claimant was unlawfully and unfairly dismissed. He had served diligently for two (2) years. He was not paid terminal benefits upon dismissal and was not given any notice of intended dismissal. He suffered loss and damage. The court awards him two (2) months salary in compensation in terms of section 49(1)(c) and 49(4) of the Employment Act, 2007 in the sum of Kshs.60,000.
11. In the final analysis, judgment is entered in favour of the Claimant as against the Respondent as follows:-
a. Kshs.30,000 in lieu of notice.
b. Kshs.161,000 arrear salary.
c. Kshs.60,000 in lieu of leave.
d. Kshs.30,000 service gratuity.
e. Kshs.60,000 compensation.
Total Award 341,000/-.
f. Interest at court rates from date of filling suit till payment in full in respect of a – d above and from date of judgment in respect of e above.
g. Costs to follow the event.
Dated and Signed in Kisumu this 12th day of October, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 26th day of October, 2018
Maureen Onyango
Judge
Appearances
Ochieng & Co. Advocates for Claimant
Gitonga Kinyanjui & Co. Advocates for Respondent
Daniel Ngumbi – Court Clerk