[2015] KEELRC 176 (KLR)
The court found that the respondent, having failed to enter appearance or file a defence, did not discharge its statutory burden to prove the reasons for terminating the claimants' employment. In the absence of any justification for the dismissal, the court deemed the termination unfair under the Employment Act. The...
Source-derived case information.
- Citation
- [2015] KEELRC 176 (KLR)
- Parties
- Applicant: Mary Wanjuku Maina; Applicant: Peninnah Kivivya Kitheka; Respondent: Horizon Chemicals Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1752 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimants
- Legal Topics
- Unfair Termination, Summary Dismissal, Terminal Dues, Service Pay, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wanjuku Maina
Applicant
Peninnah Kivivya Kitheka
Applicant
Horizon Chemicals Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimants were unfairly dismissed from employment.
- 2 Whether the claimants are entitled to terminal dues and compensation for unfair dismissal.
Ratio Decidendi
The court found that the respondent, having failed to enter appearance or file a defence, did not discharge its statutory burden to prove the reasons for terminating the claimants' employment. In the absence of any justification for the dismissal, the court deemed the termination unfair under the Employment Act. The court awarded each claimant one month's salary in lieu of notice, service pay at the rate of 15 days' pay for each complete year of service, and six months' salary as compensation for unfair dismissal, totaling Kshs.64,000 per claimant. Costs of the suit were also awarded to the claimants.
Court Disposition
judgment for the claimants
Orders
- Each claimant is awarded one month's salary in lieu of notice (Kshs.8,000).
- Each claimant is awarded service pay at the rate of 15 days' pay for each complete year of service (Kshs.8,000).
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1752 OF 2013
MARY WANJUKU MAINA……………………….....………1ST CLAIMANT
PENINNAH KIVIVYA KITHEKA……………………………2ND CLAIMANT
VERSUS
HORIZON CHEMICALS LIMITED……………….…………RESPONDENT
JUDGMENT
1. The claimants in this matter averred that they were employed by the respondent as cooks in October 2011 on a monthly salary of Kshs.8,000. The appointment was oral.
2. Around 3rd June, 2013 they were dismissed after sustaining injuries in the course of their employment without notice and payment of terminal dues. They therefore seek an order of compensation from this Court directed to the respondent to pay them their terminal dues and compensation for unfair dismissal.
3. The respondent though served did not enter appearance nor file a defence to the claim. The Court therefore directed that the matter proceeds as an undefended cause. Counsel for the respondent in that regard, elected not to call any oral evidence and instead opted to file submissions.
4. In a claim for termination of employment, the employer is required to prove the reason or reasons for termination and where such employer fails to do so, the termination shall be deemed to have been unfair.
5. The respondent, as already observed, though served, never entered appearance nor filed a defence to the claim implying it failed to prove the reason for terminating the claimant’s services with the consequence that the Court finds the dismissal unfair and awards each claimant as follows:-
(a) One month’s salary in lieu of pay…………..…8,000/=
(b) Service pay at the rate of 15 days pay for
each complete year of service………………..8,000/=
(c) Six month’s salary for unfair dismissal…......48,000/=
Total…………….…64,000/=
6. The claimants shall further have the costs of the suit.
7. It is so ordered.
Dated at Nairobi this 6th day of November 2015
Abuodha J. N.
Judge
Delivered this 6th day of November 2015
In the presence of:-
…………………………………….……for the Claimant and
…………………………………..........…for the Respondent.
Abuodha J. N.
Judge