[2018] KEELRC 2391 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT MOMBASA

CAUSE NUMBER 279 OF 2016

BETWEEN

MGANDI YAWA CHIKACHI.................................CLAIMANT

VERSUS

SULEIMAN ABDUL R. LADHA......................RESPONDENT

Rika J

Court Assistant: Benjamin Kombe

B.W. Kenzi & Company Advocates for the Claimant

Jackson Muchiri & Associates, Advocates for the Respondent

JUDGMENT

1. The Claimant filed his Statement of Claim, on 4th April 2016. He avers he was employed by the Respondent as Houseboy in November 2010. His contract of employment was terminated by the Respondent without notice or just cause, in October 2015. He prays for Judgment against the Respondent for the following:-

a) 1 month salary in lieu of notice at Kshs. 11,247.

b) Severance pay at Kshs. 28,117.

c) Underpayment of salary for 5 years at Kshs. 314,820.

d) Pro-rata annual leave at Kshs. 39,364.

e) Holiday pay at Kshs. 41,239.

Total…Kshs. 434,788

f) General damages for unfair termination.

g) Costs.

2. The Respondent filed his Statement of Response on 25th July 2016. He denies ever employing the Claimant. He does not know the Claimant, and does not owe the Claimant any terminal dues and compensation. The Respondent prays for dismissal of the Claim.

3. The Claimant gave evidence, and rested his case, on 20th July 2017. Respondent’s case was scheduled for hearing on 26th September 2017, with the concurrence of the Advocates. The Respondent and his Advocate did not attend Court on 26th September 2017. Proceedings were marked as closed. The Claimant confirmed filing of his Submissions on 30th October 2017.

4. The Claimant confirmed in his testimony that he was employed by the Respondent as a Houseboy for 5 years. He was initially paid a salary of Kshs. 5,000 monthly. It was later raised to Kshs. 6,000, the rate he earned as of the date of termination in October 2015.

5. He never went on annual leave. He was not subscribed the National Social Security Fund [N.S.S.F]. Some persons visited the Respondent’s residence on 10th October 2015. There was delay in opening the gate for the visitors. The Respondent alleged the Claimant was arrogant, and sacked him immediately. The Claimant was not given a hearing. The Claimant consulted his Trade Union KUDHEIHA, who wrote to the Respondent demanding reparation. The Respondent offered to pay Kshs. 40,000 to the Claimant as settlement. The Claimant rejected the offer as it was too little.

6. Cross-examined, the Claimant testified he knew the Respondent well. He worked for the Respondent from 1997. He left employment, and returned in 2010. He complained about the low monthly pay, in the course of employment. He used to be paid by the Respondent’s Wife. He claims notice pay at Kshs. 11,247, which is the rate advised upon him, by his Trade Union. He was not subscribed to N.S.S.F. He was denied rest days. Termination was abrupt.

The Court Finds:-

7. There is adequate evidence to show the Claimant was employed by the Respondent as a Houseboy for 5 years, between November 2010 and October 2015. The Claimant was able to show, when cross –examined by the Advocate for the Respondent that he worked initially for the Respondent, from 1997. He left employment, returning in 2010. He worked 5 years leading to October 2015, when the Respondent abruptly, terminated the Claimant’s contract, alleging the Claimant was arrogant, having failed to receive Respondent’s visitors promptly. In the absence of evidence from the Respondent, the history of Claimant’s employment with the Respondent is unchallenged.

8. The Claimant did not show that he was entitled to a salary of Kshs. 11,247 for the entire 5 years worked, and that he was underpaid to the amount of Kshs. 314,820. He did not cite any wage instrument to support his prayer for underpayment. He said nothing in his Submissions on the applicable wage orders over the period served. The prayer for underpayment of salary is rejected.

9. His contract was terminated without notice. He is allowed the prayer for notice pay at Kshs. 6,000.

10. He was not enlisted by the Respondent under the National Social Security Fund, or any other Social Security Plan. He claims severance pay, which the Court understood as a prayer for service pay. Severance pay is granted under Section 40 of the Employment Act. There was no allegation that the Claimant left employment on redundancy. The correct prayer would be for service pay under Section 35[5] of the Employment Act. He is granted service pay at 15 days’ salary over a period of 5 years, at Kshs. 17,307.

11. He prays for pro-rata leave at Kshs. 39,364. The Court again understands this to be a prayer for annual leave pay over the period served, rather pro-rata annual leave. Pro-rata leave applies, in proportion to uncompleted period, of any annual leave earning period. The Claimant does not say he was denied annual leave over a specific period, proportional to his annual leave cycle; he alleges he was denied annual leave for the entire 5 years served. This cannot be termed as pro-rata annual leave. It is plain annual leave. He is allowed the prayer for annual leave pay at 21 days per year. This translates to Kshs. 24,230 over a period of 5 years.

12. The Claimant has not established the prayer for Holiday Pay. His mode of computation appears not in accordance with the General Wages Order. He adopts a daily rate, over a 30 day period. Excess work is assessed based on the hourly rate. He has not shown during which Public Holiday he was at work, and for how many hours. The prayer is rejected.

13. The Respondent did not prove the reason or reasons justifying termination. There were no charges presented to the Claimant. He was not heard. Termination was abrupt. It was unfair under Sections 41, 43 and 45 of the Employment Act. He is granted the equivalent of 12 months’ salary in compensation for unfair termination at Kshs. 72,000.

14. He is granted the prayer for costs.

IN SUM, IT IS ORDERED:-

a) Termination was unfair.

b) The Respondent shall pay to the Claimant: 1 month salary in lieu of notice at Kshs. 6,000; service pay at Kshs. 17,307; annual leave pay at Kshs. 24,230; and compensation for unfair termination at Kshs, 72,000- total Kshs. 119,537.

c) Costs to the Claimant.

Dated and delivered at Mombasa this 16th day of February 2018.

James Rika

Judge