[2020] KEELRC 721 (KLR)
The court found that the claimants had proved their case on a balance of probabilities, as the respondent failed to file a response or attend the hearing. The evidence showed that the claimants were employed by the respondent, worked for the periods claimed, and were terminated without notice or payment in lieu of...
Source-derived case information.
- Citation
- [2020] KEELRC 721 (KLR)
- Parties
- Plaintiff: Manase Obwana Obose and 7 others; Defendant: Apokor Youth Polytechnic
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 44 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimants
- Judges
- MN Nduma
- Legal Topics
- Unlawful Termination, Salary Arrears, Notice Pay, Certificates of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Manase Obwana Obose and 7 others
Plaintiff
Apokor Youth Polytechnic
Defendant
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimants were unlawfully terminated from employment without notice or payment in lieu of notice.
- 2 Whether the claimants are entitled to salary arrears for the period worked.
- 3 Whether the claimants are entitled to certificates of service.
Ratio Decidendi
The court found that the claimants had proved their case on a balance of probabilities, as the respondent failed to file a response or attend the hearing. The evidence showed that the claimants were employed by the respondent, worked for the periods claimed, and were terminated without notice or payment in lieu of notice. The court held that the claimants were entitled to salary arrears for the months worked, payment in lieu of notice, and certificates of service. The court relied on the Employment Act provisions requiring notice or payment in lieu and the issuance of certificates of service. The respondent's failure to participate in the proceedings or contest the claims led the court to...
Court Disposition
judgment for the claimants
Orders
- Judgment entered in favour of the claimants for the specified sums per claimant.
- Interest at court rates from the date of filing suit until payment in full.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 44 OF 2016
(Before Hon. Justice Mathews N. Nduma)
MANASE OBWANA OBOSE AND 7 OTHERS...............................................CLAIMANT
VERSUS
APOKOR YOUTH POLYTHECHNIC.........................................................RESPONDENT
JUDGMENT
1. The eight (8) claimants filed suit on 10th February 2016 praying for payment of the following terminal benefits:-
a. One month salary in lieu of notice.
b. Salary arrears due to each claimant and
c. Certificates of service.
2. The claimants filed a statement signed by each one of them authorizing Mr. Manase O. Obose the 2nd claimant to represent them in court.
3. CW1 Manase Obose testified under oath in support of the claims. CW1 produced appendix ‘I’ which is a computation of terminal dues owed to each claimant by the respondent. The document is signed by all the 8 claimants. CW1 also produced a demand notice sent to the respondent by the Kenya National Private Security Worker Union on behalf of the claimants dated 28th July 2014.
4. CW1 testified that the Claimants were 5 teachers, 1 secretary and 1 watchman at Apokor Polytechnic employed on diverse dates. The claimants were paid salaries stated in the statement of claim and they worked until the dates set out in the statement of claim.
5. CW1 testified that the employment of the claimants was terminated without payment of arrear salaries and notice pay on different dates. The termination by the respondent was for inability to pay the claimants their salaries. The claimants had not been paid for the number of months shown in Annex ‘I’ of the claim.
6. The claimants were not given notice of termination and were not paid in lieu of notice. The claimants were also not given certificates of service. The claimants were not union members. CW1 stated that he was a welding teacher and was dismissed on 10th September 2014. That Juvenal O. Okelele was the watchman whereas Carolyne Okelele was the secretary.
7. CW1 prayed the suit be granted as prayed.
8. The suit was not defended by the respondent despite having filed Memorandum of Appearance on 15th August 2018. The respondent did not file statement of response nor did it attend the hearing of the suit.
9. The Court is satisfied that the claimants have proved the particulars of claim on a balance of probabilities as set out in the statement of claim and annextures thereof and in particular annex ‘I’.
10. The court enteres Judgment in favour of the claimants against the respondent as follows: -
a. Carolyine Ipalei – Kshs. 36,000.
b. Manasi Obware Obose Kshs. 84,000
c. Opili Michael Kshs. 112,000
d. John Ken Barasa Kshs. 126,000
e. Pamela Imai Kshs. 72,000
f. Juvenal O. Okele Kshs. 45,000
g. Pamela O. Omukanga Kshs. 126,000 and
h. David S. Wanzala Kshs. 84,000
i. Interest at court rates from date of filing suit till payment in full.
j. Certificates of service to be issued to the Claimants within 30 days of this Judgment.
k. Costs of the suit.
Ruling Dated, Signed and Delivered at Nairobi this 16th day of July 2020.
Mathew N. Nduma
Judge
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
Mathews N. Nduma
Judge
Appearances:-
Claimants in person
J. P. Wakhokiher & Co. Advocates for the respondent.
Chrispo: Court clerk