[2019] KEELRC 1424 (KLR)
The court found that the respondent, having been duly served, failed to appear or file a defence, and thus did not discharge the statutory burden of proving the reasons for termination. The claimant's account of events was credible and unchallenged. The court held that the termination was unfair under the Employment...
Source-derived case information.
- Citation
- [2019] KEELRC 1424 (KLR)
- Parties
- Claimant: Michael Okwaro; Respondent: Megtraco Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 69 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment entered for the claimant.
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Burden of Proof, Notice Pay, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Okwaro
Claimant
Megtraco Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was unfairly terminated.
- 2 Whether the claimant is entitled to compensation for unfair dismissal.
- 3 Whether the respondent discharged the burden of proof for the termination.
Ratio Decidendi
The court found that the respondent, having been duly served, failed to appear or file a defence, and thus did not discharge the statutory burden of proving the reasons for termination. The claimant's account of events was credible and unchallenged. The court held that the termination was unfair under the Employment Act, 2007, and awarded the claimant one month's salary in lieu of notice, salary for November, and six months' salary as compensation for unfair dismissal, plus costs, subject to taxes.
Court Disposition
Claim allowed. Judgment entered for the claimant.
Orders
- The respondent shall pay the claimant Kshs 15,000 as one month's salary in lieu of notice.
- The respondent shall pay the claimant Kshs 15,000 as November salary.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 69 OF 2015
MICHAEL OKWARO………......….………………........................CLAIMANT
VERSUS
MEGTRACO LIMITED…….…………..………………..……..RESPONDENT
JUDGEMENT
1. This matter proceeded ex-parte after the court was persuaded that the respondent was duly served.
2. According to the claimant he was employed by the respondent as a driver between November 2013 and December 2014 at a salary of Kshs 15,000 per month. The appointment was oral. His job according to him, entailed transportation of LPG gas that the respondent was selling.
3. On 22nd Novemnber, 2014 he was tasked to transport gas to Sarit Centre Westlands but immediately he left the respondent’s premises around 9. 00 a.m. together with the turnboy a saloon Toyota Corolla overtook them and the occupant who had police walkie-talkie ordered him to pull the vehicle aside which they did and were bundled out of the vehicle into the saloon vehicle which then sped off.
4. According to him they were handcuffed and fleeced of their valuables. The people who he now realized were thugs took them to various places they did not know where they were covered with big jackets. He was asked for his M-shwari pin number and national identity card. He later came to learn that the thugs withdrew Kshs 140,000/= from his mpesa account. At around 2. 00 pm they were dropped at a place they did not know but when he asked he was told it was Ruai. He tried to report the incident to Ruai police station but was advised to report to the station near where they were hijacked which was Embakasi. He then borrowed a phone from a policeman and called his boss and told him what had happened.
5. After 2 days his boss told him that he had been called and told the lorry was at Buruburu Police Station and that he should go and collect it. He brought back the lorry and continued working as usual. Four days late an insurance agent came to the company premises to take a record of what had been lost. He gave a list of items which had been taken from the lorry which included LPG cylinders, a spare wheel, jack and also the money withdrawn from his Mpesa account.
6. On 8th December, 2014 he was called and issued with a termination letter. The letter had attachment in which he was requested to sign that he had received all his dues. According to the claimant he declined to sign the letter and a Mr Neal Patel chased him away hurling insults at him calling him a robber.
7. The burden of proof of reasons for which a contract of employment has been terminated rests on the employer. In default the court shall find that the termination of employment was unfair. The respondent herein though served never entered any appearance nor filed a defence to rebut the claimant’s claim. The court has considered the claimant’s version of how his contract with the respondent came to an end and is in the view that he has discharged the burden of proof cast upon him by law.
8. The court therefore awards claimant as follows:
Kshs
a. One month’s salary in lieu of notice 15,000
b. November salary 15,000
c. Six months’ salary as compensation
for unfair dismissal 90,000
120,000
d. Costs of the suit
e. Award subject to taxes.
9. It is so ordered.
Dated at Nairobi this 31st day of May, 2019
Abuodha J. N.
Judge
Delivered this 31st day of May, 2019
Maureen Onyango
Principal Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.