[2017] KEELRC 1795 (KLR)
The court found that the claimant was denied access to his workplace without any valid or justifiable reason provided by the employer, and the respondent failed to participate in the proceedings or provide any evidence to justify the termination. The court held that the termination was unfair as it did not comply...
Source-derived case information.
- Citation
- [2017] KEELRC 1795 (KLR)
- Parties
- Claimant: Moses Njue Nguru; Respondent: Bidco Oil Refineries
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1105 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant in part
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Compensation for Dismissal, Burden of Proof, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Moses Njue Nguru
Claimant
Bidco Oil Refineries
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment.
- 2 Whether the claimant is entitled to compensation for unfair termination and terminal dues.
- 3 Whether the claimant proved claims for overtime and house allowance.
Ratio Decidendi
The court found that the claimant was denied access to his workplace without any valid or justifiable reason provided by the employer, and the respondent failed to participate in the proceedings or provide any evidence to justify the termination. The court held that the termination was unfair as it did not comply with the requirements of valid reason and fair procedure under the Employment Act. However, the claimant failed to prove his claims for overtime and house allowance due to lack of evidence. The court awarded the claimant one month’s salary in lieu of notice and eight months’ salary as compensation for unfair termination, but disallowed the unproven claims.
Court Disposition
judgment for the claimant in part
Orders
- The respondent shall pay the claimant Kshs 10,800 as one month’s salary in lieu of notice.
- The respondent shall pay the claimant Kshs 86,400 as compensation for unfair termination.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NUMBER 1105 OF 2011
MOSES NJUE NGURU................................CLAIMANT
VERSUS
BIDCO OIL REFINERIES......................RESPONDENT
JUDGEMENT
1. This cause proceeded as undefended cause. According to the claimant he was engaged by the respondent as a general worker in March, 2000 at a starting daily wage of Kshs 860 paid weekly.
2. On 10th March, 2010 he reported to work as usual but when he tried to log in the system failed. He reported the incident to the management but did not get any assistance prompting him to report the issue to the District Labour Officer where again he did not get any assistance. The claimant therefore brought the present claim to the court securing judgement against the respondent for payment of his terminal dues as well as compensation for unfair termination of services.
3. In his oral testimony in court the claimant reiterated the averments in the memorandum of claim and further stated that his supervisor Mr Mwangi advised him to stay away for a week and return thereafter but when he returned, he still could not be allowed access to his workplace.
4. Termination or dismissal from employment must be done for a valid or justifiable reason. Further in carrying out such termination, the employer must do so through a fair procedure. The burden of proof that a termination or dismissal took place for a valid or justifiable reason and further burden of proof that termination was carried out in accordance with proper procedure, rests with the employer.
5. The employer though entered appearance through Ms Musinga & Company Advocates failed to file a defence thereto and further failed to represent the respondent at the trial. The matter therefore proceeded as an undefended cause. However, the fact that a matter proceeds undefended does not lessen the burden of proof cast upon the claimant by law. Those matters upon which the onus of proof is placed upon such claimant must be proved to the required standards.
6. The claimant in his evidence in chief only testified to his dismissal and that his dismissal was unfair. The claimant pleaded issues of overtime and non-payment of house allowance but did not tender any evidence that such overtime was worked for but unpaid and further that he was entitled to house allowance but was never paid. No payslip or evidence of the amount payable to him either weekly or monthly was exhibited to vouch for these allegations. They therefore remained unproved and are hereby disallowed.
7. The court therefore enters judgement for the following only:
Kshs.
a) One month’s salary in lieu of notice 10,800
b) Eight months salary as compensation for
unfair termination of services 86,400
97,200
c) Costs of the suit.
8. It is so ordered.
Dated at Nairobi this 10th day of February 2017
Abuodha J. N.
Judge
Delivered this 10th day of February 2017
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge