[2018] KEELRC 1309 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 195 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

MOHAMED ALI NUR................................CLAIMANT

-VERSUS-

KAMPALA COACH LIMITED............RESPONDENT

JUDGMENT

The claimant herein filed suit against the respondent a limited liability company operating passenger service buses alleging that he was employed by the respondent originally as a bus supervisor and later promoted to Inspector and Regional Manager between 2008 and 2015. His salary as a bus supervisor was Kshs.20,000 per month in 2010 and 2011 and Kshs.40,000 per month as a Regional Manager of the Kenya-Juba route in South Sudan.

The claimant avers that he is owed arrears of salary for the months of March to December 2010 and from January to December 2011 at Kshs.20,000 per month, arrears from February to August 2013 at Kshs.40,000 per month and further arrears from June to December 2014 at Kshs.20,000 per month and finally Ksh.20,000 per month from January to May 2015. He avers that the total arrears owed by the respondent is Kshs.780,000. He avers that the respondent is intent on terminating or has terminated his services without giving him proper reason or paying him arrears of salary and other remuneration.

The claimant prays for judgment against the respondent as follows –

a) The sum of Kshs.780,000/=.

b) Three months’ salary of Kshs.40,000/= per month in lieu of termination of employment.

c) Cots of this suit and interest on (a) and (b) above.

d) Any other relief the court may deem just and fit to grant.

The respondent was served through its office in Busia but did not enter appearance or file defence.

At the hearing the claimant testified on his behalf. He reiterated the averments in the claim and relied on the payment vouchers and documents filed with the claim and those produced in court. He testified that he worked as a Bus Inspector from March 2008 to 2010 at a salary of Kshs.20,000. From 2010 to 2015 he was a superior then he was promoted to Regional Manager at a salary of kshs.40,000 per month. He was deducted NSSF and NHIF.

The claimant testified that his employment was terminated unfairly on 3rd May 2015. He was not given any reason for the termination or a chance to defend himself. The respondent stopped paying his salary in May 2015. He was not paid salary from March to December 2010 at Kshs.20,000 per month. He was also not paid salary for the whole of 2011. He was also not paid from February to August 2013 at Kshs.40,000 per month but was paid from August to December 2013. In 2014 he was paid. From January to May 2015 he was not paid. At the time of termination he was working in Uganda at a reduced salary of Kshs.20,000.

He testified that in January 2015 he was in charge of banking and deposited money into the respondent’s account on behalf of the respondent. He produced copies of the bank deposit slips.

The claimant testified that all employees were informed by the owner of the respondent company Mr. Abdul Basiet that there was no work as the company was under receivership. The information was relayed by phone.

The claimant testified that he was seeking payment of arrears of salary, three months’ notice, costs and interest.

Determination

I have considered the pleadings and evidence of the claimant. I have also considered the documents on record.

Although there is evidence that the claimant worked for the respondent, it is not evident that the work was performed in Kenya. The deposit slips produced by the claimant are for Standard Chartered Bank Limited, Uganda, City Branch and the currency of the deposit is Uganda shillings. The only payslip produced by the claimant is a salary voucher which reflects a net monthly salary of shs.250,000 which appears to be in Uganda shillings. The staff card produced which appears to have an Eldoret address is not eligible on the face where there is a photo presumably of the claimant.

There is further no explanation how the claimant considered himself an employee if he went for periods of more than a year without a salary as stated in both the claim and in his testimony. It is further not clear whether or not the respondent is in existence as the claimant testified that the owner of the company informed all employees that there was no more work for them as the company was under receivership.

For these reason I find that the claimant has not proved that the cause of action arose in Kenya and not Uganda as reflected in the documents on record. The court is convinced that the claimant’s employment was in Uganda outside the jurisdiction of the court.

The court is further not convinced that the claimant was in regular employment as there is no explanation for the long periods of up to one year when the claimant was not paid a salary. There is also no explanation how the claimant at first earned Kshs.20,000, then shs.40,000 and thereafter Kshs.20,000 per month as reflected in his testimony.

There is further no evidence that the claimant was paid in Kenyan currency as the only payslip on record is for a sum of Uganda shillings 250,000 paid on 31st October 2008.

For the foregoing reasons I find that the claimant has not proved his case with the result that the claim is dismissed.

DATED AND SIGNED AT NAIROBI ON THIS 4TH DAY OF JULY 2018

MAUREEN ONYANGO

JUDGE

DATED AND DELIVERED AT KISUMU ON THIS 30TH DAY OF JULY 2018

MATHEWS NDERI NDUMA

JUDGE