[2019] KEELRC 233 (KLR)
The court found that the claimant had, in fact, resigned from employment on 26th November 2015, as admitted during his testimony, and not been unlawfully terminated as initially pleaded. Consequently, the claims for compensation and notice pay were abandoned. The court held that the respondent, as the custodian of...
Source-derived case information.
- Citation
- [2019] KEELRC 233 (KLR)
- Parties
- Claimant: Musee Kithu; Respondent: Auto Continental Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 747 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed; judgment for claimant for leave pay and prorata leave only; other claims dismissed; each party to bear own costs.
- Judges
- L Ndolo
- Legal Topics
- Unlawful Termination, Resignation Notice, Leave Pay, Service Pay, Overtime Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musee Kithu
Claimant
Auto Continental Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unlawfully terminated or resigned from employment.
- 2 Whether the claimant is entitled to leave pay, service pay, overtime, and public holiday compensation.
- 3 Whether the respondent is liable for compensation and notice pay.
Ratio Decidendi
The court found that the claimant had, in fact, resigned from employment on 26th November 2015, as admitted during his testimony, and not been unlawfully terminated as initially pleaded. Consequently, the claims for compensation and notice pay were abandoned. The court held that the respondent, as the custodian of employment records, failed to provide evidence to counter the claim for leave pay, and thus allowed the claim under Section 10(7) of the Employment Act. The claim for service pay was dismissed because the claimant was a contributing member of the NSSF. The claims for overtime and public holidays were dismissed as unproven, since the claimant failed to establish the basis for the...
Court Disposition
Claim partly allowed; judgment for claimant for leave pay and prorata leave only; other claims dismissed; each party to bear own costs.
Orders
- Respondent to pay claimant Kshs. 41,392 as leave pay and prorata leave.
- Amount to attract interest at court rates from date of judgment until payment in full.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA
CAUSE NO 747 OF 2017
MUSEE KITHU...............................................................................CLAIMANT
VS
AUTO CONTINENTAL LIMITED...........................................RESPONDENT
JUDGMENT
Introduction
1. Musee Kithu was an employee of Auto Continental Limited, working in the position of Truck Driver, from 13th March 2013 until 10th November 2015. By his Memorandum of Claim dated 15th September 2017, he seeks relief for unlawful termination of employment.
2. The Respondent filed a Response on 12th October 2017, to which the Claimant responded on 13th March 2018.
3. When the matter came up for hearing, the Claimant testified on his own behalf and the Respondent called its Director, Arif Pasta.
The Claimant’s Case
4. The Claimant states that he was employed by the Respondent on 13th March 2013. He earned a monthly salary of Kshs. 22,174. He claims that on 10th November 2015, he reported to work as usual but his employment was terminated verbally.
5. The Claimant makes a case of unlawful termination of employment and seeks the following remedies:
a) One month’s salary in lieu of notice...........................Kshs. 22,174
b) Leave pay for 2 years............................................................22,174
c) Service pay for 2 years.........................................................22,174
d) 12 months’ salary in compensation.....................................266,088
e) Overtime for 2 years............................................................410,000
f) Public holidays pay...............................................................15,000
g) Costs plus interest
The Respondent’s Case
6. In its Response dated 12th October 2017 and filed in court on the same date, the Respondent admits having employed the Claimant as a Truck Driver at a monthly salary of Kshs. 22,174 effective 13th March 2013.
7. The Respondent denies terminating the Claimant’s employment and states that the Claimant worked until 26th November 2015 when he resigned by giving one day’s notice, instead of the one month’s notice required under his contract of employment.
8. The Respondent claims to have suffered loss as a result of the Claimant’s failure to give adequate resignation notice. The Respondent accuses the Claimant of malice and sabotage by resigning to join a competitor company as a driver.
Findings and Determination
9. Both in his Memorandum of Claim and witness statement filed in court, the Claimant alleges that his employment was unlawfully terminated by the Respondent.
10. However, when he appeared before the Court, he testified that he himself resigned from employment on 26th November 2015. He therefore abandoned the prayers for compensation and notice pay.
11. Regarding the claim for leave pay I have this to say; the Respondent as the custodian of employee records ought to have adduced documentary evidence to counter the claim. In the absence of any such records, I invoke Section 10(7) of the Employment Act and allow the claim for leave pay.
12. Having been a contributing member of the National Social Security Fund (NSSF), the Claimant is not entitled to service pay.
13. The Claimant further claims overtime compensation and public holidays. In the final submissions filed on behalf of the Respondent, reference was made to the decision in Rogoli Ole Manadiegi v General Cargo Services Limited [2016] eKLR where my brother Rika J stated the following:
“It is true the employer is the custodian of employment records. The employee, in claiming overtime however, is not deemed to establish the claim for overtime pay by default of the employer bringing to court such employment records. The burden of establishing hours or days served in excess of the legal maximum rests with the employee.”
14. The Claimant made no attempt to explain the sums claimed under the overtime and public holidays limbs. The said claims were therefore unproved and are dismissed.
15. In the end, I enter judgment in favour of the Clamant as follows:
a) Leave pay for 2 years (22,174/30x21x2)..................................Kshs. 31,044
b) Prorata leave for 8 months (22,174/30x1. 75x8)..................................10,348
Total..........................................................................................................41,392
16. This amount will attract interest at court rates from the date of judgment until payment in full.
17. Since the Claimant’s claim only succeeds in part, I direct that each party will bear their own costs.
18. Orders accordingly.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 5TH DAY OF DECEMBER 2019
LINNET NDOLO
JUDGE
Appearance:
Mr. Ngonze for the Claimant
Mr. Otieno for the Responden