[2018] KEELRC 490 (KLR)
The court found that the claimant resigned voluntarily and not as a result of unfair termination by the respondent. Consequently, the claim for unfair termination and related compensation failed. The claims for underpayment, house allowance, and work on rest days were found to be time-barred, as they were not filed...
Source-derived case information.
- Citation
- [2018] KEELRC 490 (KLR)
- Parties
- Claimant: Maxmilla Mwabishi Wishenga; Respondent: Margarita Guest House
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2064 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- partly allowed
- Judges
- B Ongaya
- Legal Topics
- Resignation, Terminal Dues, Limitation Periods, Unfair Termination, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maxmilla Mwabishi Wishenga
Claimant
Margarita Guest House
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's resignation amounted to unfair termination.
- 2 Whether the claims for underpayment, house allowance, and work on rest days were time-barred under section 90 of the Employment Act, 2007.
- 3 Whether the claimant was entitled to pay in lieu of annual leave.
Ratio Decidendi
The court found that the claimant resigned voluntarily and not as a result of unfair termination by the respondent. Consequently, the claim for unfair termination and related compensation failed. The claims for underpayment, house allowance, and work on rest days were found to be time-barred, as they were not filed within the statutory 12-month limitation period after cessation of the alleged continuing injuries. The claim for pay in lieu of annual leave was dismissed based on the claimant's own testimony that she had taken leave in February 2013. The court determined that all terminal dues had been paid except for Kshs. 1,732.00, which the respondent admitted was omitted in the...
Court Disposition
partly allowed
Orders
- The respondent to pay the claimant Kshs. 1,732.00.
- The respondent to deliver a certificate of service to the claimant within 7 days.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE NO.2064 OF 2015
MAXMILLA MWABISHI WISHENGA.........................CLAIMANT
- VERSUS -
MARGARITA GUEST HOUSE..................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 14th December, 2018)
JUDGMENT
The claimant filed the memorandum of claim on 20. 11. 2015 in person. He prayed for judgment against the respondent for:
a) Pay in lieu of notice Kshs.9, 867. 00.
b) Pay in lieu of leave Kshs. 8, 313. 00.
c) 2 years’ services pay Kshs. 9, 867. 00.
d) Wage underpayment Kshs. 32, 688. 00 plus 33, 505. 00.
e) Pay on work on rest 104 rest days Kshs. 42, 952. 00.
f) 12 months compensation at Kshs. 9, 867. 00 per month giving Kshs. 118, 404. 00.
g) Certificate of service under section 51 of Employment Act, 2007.
The respondent filed the memorandum of response on 15. 01. 2016. The respondent prayed that the suit be dismissed with costs.
There is no dispute that the respondent employed the claimant as a cleaner effective 04. 01. 2011. During service the respondent severally served written warnings upon the claimant upon stated grounds of misconduct or poor performance. On 01. 08. 2013 the claimant was placed on a compulsory leave. By the letter dated 18. 07. 2013 the claimant opted not to proceed on compulsory leave. Instead by that letter the claimant resigned and apologised. The final dues were paid except Kshs. 1, 732. 00 missed in the computation and the respondent was willing to issue the certificate of service.
First, in view of the resignation, the Court returns that the termination of the contract of service by way of the claimant’s resignation did not amount to unfair termination. Allegations for unfair termination and compensation in that regard will fail.
Second, the claimant resigned on 18. 07. 2013. The Court finds that the claims for underpayment, house allowance, and work on rest days were of a continuing nature and ceasing on 18. 07. 2013 and the suit was filed on 20. 11. 2015 outside the time of limitation for such continuing injuries being 12 months under section 90 of the Employment Act, 2007. They will fail as time barred.
Third,the claimant testified she had been on leave in February 2013 and in view of that evidence, the Court returns that the claim for pay in lieu of annual leave will fail on a balance of probabilities.
Fifth, the Court returns that the claimant was paid all terminal dues including days worked except Kshs. 1, 732. 00 as pleaded for the respondent.
In conclusion judgment is hereby entered in the suit with orders:
a) The respondent to pay the claimant Kshs. 1, 732. 00 and to deliver a certificate of service in 7 days.
b) Each party to bear own costs of the suit.
Signed, datedand deliveredin courtat Nairobithis Friday 14th December, 2018.
BYRAM ONGAYA
JUDGE