[2023] KEELRC 175 (KLR)
The court found that the claimant's employment was terminated without valid reason or notice, contrary to the requirements of the Employment Act. The respondent did not contest the claim or provide any justification for the termination. The claimant was not paid salary for four months preceding termination and was...
Source-derived case information.
- Citation
- [2023] KEELRC 175 (KLR)
- Parties
- Applicant: Kiseki Kisule Mbai; Respondent: Creative Consolidated System Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E739 of 2021
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed. Termination declared unfair. Monetary awards granted for salary arrears, notice, and compensation. Severance and statutory dues denied.
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Notice Pay, Salary Arrears, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiseki Kisule Mbai
Applicant
Creative Consolidated System Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unfair and unlawful.
- 2 Whether the claimant is entitled to salary arrears, notice pay, and compensation for unfair termination.
- 3 Whether the claimant is entitled to severance or service pay and statutory deductions.
Ratio Decidendi
The court found that the claimant's employment was terminated without valid reason or notice, contrary to the requirements of the Employment Act. The respondent did not contest the claim or provide any justification for the termination. The claimant was not paid salary for four months preceding termination and was not given notice. The court held that the termination was unfair and awarded the claimant salary arrears, notice pay, and compensation for unfair termination. The claim for severance pay was denied as there was no redundancy, and the claimant was subscribed to NSSF, making her ineligible for service pay. Claims for unremitted statutory deductions were directed to be pursued with...
Court Disposition
Claim partly allowed. Termination declared unfair. Monetary awards granted for salary arrears, notice, and compensation. Severance and statutory dues denied.
Orders
- It is declared that termination was unfair.
- The respondent shall pay to the claimant: salary arrears of 4 months at Kshs 44,800; notice at Kshs 11,200; and equivalent of 10 ½ months’ salary in compensation for unfair termination at Kshs 117,600 – total Kshs 173,600.
Full Case Text
Judgment text and source record
29 paragraphs
Mbai v Creative Consolidated System Ltd (Cause E739 of 2021) [2023] KEELRC 175 (KLR) (31 January 2023) (Judgment)
Neutral citation: [2023] KEELRC 175 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E739 of 2021
J Rika, J
January 31, 2023
Between
Kiseki Kisule Mbai
Claimant
and
Creative Consolidated System Ltd
Respondent
Judgment
1. There is no response to this claim.
2. The claimant states that she was employed by the respondent as a stewardess, in October 2009. She worked for 10 years. Her contract was terminated by the respondent at the end of April 2020.
3. She was not given valid reasons, to justify termination. There was no notice. Her last salary was Kshs 11,200 monthly. She pleads that termination was unfair and unlawful, and asks the court to grant the following orders: -a.Unpaid salary of 4 months at Kshs 44,800. b.1-month salary in lieu of notice at Kshs 11,200. c.12 months’ salary in compensation for unfair termination at Kshs 132,000. d.Severance pay at Kshs 56,000. e.Deducted but unremitted NSSF contributions at Kshs 6,800. f.Deducted but unremitted NHIF contributions at Kshs 15,200. Total … Kshs 265,800.
4. In her evidence on formal proof, on November 10, 2022, the claimant told the court that she was employed by the respondent as a cleaner. It is not clear if a cleaner, is the same designation as a stewardess. She was dismissed after about 10 ½ years of service. She adopted her witness statement as her evidence-in-chief.
The Court Finds: - 5. The Claim is undefended, and the evidence on record is uncontested.
6. The Claimant was employed by the Respondent as a Stewardess / Cleaner, in October 2009. Her contract was terminated by the Respondent in April 2020. She worked for about 10 ½ years. There is no record of reasons given to her by the Respondent, to justify termination. There was no notice. Termination was unfair.
7. She was not paid her salary for January to April 2020. She is awarded 4 months’ salary in arrears at Kshs 44,800.
8. Notice of 1 month is awarded at Kshs 11,200.
9. The Claimant had worked for 10 ½ year. Her disciplinary and performance record has not been faulted. She is not shown to have contributed, to the circumstances that led to termination of her contract. She merits and is awarded equivalent of 10 ½ months’ salary in compensation for unfair termination, at Kshs 117,600.
10. Severance is paid in event an Employee has left employment on redundancy. It was not in the Claimant’s pleadings or evidence, that termination was on account of redundancy. If she meant to claim service pay, there are documents which she exhibited from the NSSF showing that she was subscribed to the NSSF, and therefore ineligible for service pay, under section 35 [6] of the Employment Act.
11. The prayers for unpaid statutory dues should be pursued with the relevant statutory bodies. Statutory dues are not intended to revert to the contributor’s pocket, if unremitted.
12. Costs to the claimant.
13. Interest allowed at court rate, from the date of judgment till payment is made in full.
14. In sum, it is ordered:-a.It is declared that termination was unfair.b.The respondent shall pay to the claimant: salary arrears of 4 months at Kshs 44,800; notice at Kshs 11,200; and equivalent of 10 ½ months’ salary in compensation for unfair termination at Kshs 117,600 –total Kshs 173,600. c.Costs to the claimant.d.Interest allowed at court rate, from the date of judgment, till payment is made in full.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 31ST DAY OF JANUARY, 2023. JAMES RIKAJUDGECourt Assistant: Emmanuel KipronoAvedi & Company Advocates for the ClaimantNo appearance for the respondent