[2020] KEELRC 1581 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NO 89 OF 2018

PASCAL LUCAS MWABUNI................................................................1ST CLAIMANT

JOSEPH KATANA YAA........................................................................2ND CLAIMANT

LENNOX KAZUNGU MWABAYA......................................................3RD CLAIMANT

VS

PENTAGON ELITE SECURITY SERVICES LIMITED....................RESPONDENT

JUDGMENT

Introduction

1. This claim is brought by Pascal Lucas Mwabuni, Joseph Katana Yaa and Lennox Kazungu Mwabaya against Pentagon Elite Security Services Limited.

2. The claim is contained in a Memorandum of Claim dated 22nd February 2018 and filed in court on 28th February 2018. In spite of due service, the Respondent did not file any response. The matter therefore proceeded by way of formal proof, with the 1st and 3rd Claimants testifying.

The Claimants’ Case

3. The Claimants state that they were employed by the Respondent as security guards on diverse dates in November and December 2012. They were deployed to guard yards belonging to Mulji Devraj & Brothers Limited at Kaloleni in Kilifi County.

4. The Claimants further state that they received a call from the Respondent telling them that they should not report to work the following day since their employment had been terminated.

5. The Claimants lay a claim for unlawful and unfair termination of employment and therefore seek the following:

1st Claimant: Pascal Lucas Mwabuni

a) One month’s salary in lieu of notice……………………………...………Kshs. 6,500

b) Gratuity (15/30x6,500x46/12)……………………………………………...………12,458

c) Accrued leave days (1. 75x6,500x30x46)…………………………………...….17,441

d) House allowance (15/100x6,500x46)………………………………………...…44,850

e) Rest days (52x6,500/30x46/12)………………………………………………....…88,377

f) Public holidays (11x6,500/30x2x46/12)…………………………………....….18,272

g) Damages for unlawful termination………………………………………....……78,000

2ndClaimant: Joseph Katana Yaa

a) One month’s salary in lieu of notice………………………………...……Kshs. 7,500

b) Gratuity (15/30x7,500x45/12)…………………………………………...…………14,062

c) Accrued leave days (1. 75x7,500x30x45)…………………………………...….19,687

d) House allowance (15/100x7,500x46)………………………………………...…50,625

e) Rest days (52x7,500/30x45/12)……………………………………………....……97,500

f) Public holidays (11x7,500/30x2x45/12)…………………………………….....20,625

g) Damages for unlawful termination………………………………………....……90,000

3rdClaimant: Lennox Kazungu Mwabaya

a) One month’s salary in lieu of notice……………………………...………Kshs. 6,500

b) Gratuity (15/30x6,500x46/12)………………………………………………...……12,458

c) Accrued leave days (1. 75x6,500x30x46)…………………………………...….17,441

d) House allowance (15/100x6,500x46)……………………………………...……44,850

e) Rest days (52x6,500/30x46/12)………………………………………………....…88,377

f) Public holidays (11x6,500/30x2x46/12)…………………………………….....18,272

g) Damages for unlawful termination………………………………………......…78,000

6. The Claimants also ask for costs plus interest.

Findings and Determination

7. There are two (2) issues for determination in this case:

a) Whether the Claimants have made out a case of unlawful termination of employment;

b) Whether the Claimants are entitled to the remedies sought.

Unlawful Termination?

8. In support of their case, the 1st Claimant, Pascal Lucas Mwabuni and the 3rd Claimant, Lennox Kazungu Mwabaya testified that on 7th September 2016, they received a call from the 2nd Claimant, Joseph Katana Yaa, who was their supervisor, notifying them that they should not report to work the following day.

9. Interestingly, the 2nd Claimant, Joseph Katana Yaa who is said to have communicated the decision to terminate Mwabuni’s and Mwabaya’s employment did not appear to testify before the Court.

10. The 2nd Claimant’s testimony would have been crucial in corroborating the testimonies of the 1st and 3rd Claimants. Indeed, in the absence of the testimony of the 2nd Claimant, the words of the 1st and 3rd Claimants regarding the circumstances of their exit from the Respondent’s employment remained unsupported and unconfirmed.

11. Under Section 47(5) of the Employment Act, an employee alleging unlawful termination of employment bears the burden of proving that an unfair termination of employment has occurred. In my view, this burden cannot be discharged by the uncorroborated word of the affected employee.

12. For this reason, I find and hold that the Claimants have failed to prove their allegation that their employment was unlawfully terminated. The claims for damages and notice pay therefore fail and are dismissed.

Other Remedies

13. The Claimants also claim house allowance. Section 31(1) and (2) of the Employment Act provides as follows:

31. (1) An employer shall at all times, at his own expense, provide reasonable housing accommodation to each of his employees either at or near to the place of employment or shall pay to the employee such sufficient sum, as rent, in addition to the wages or salary of the employee, as will enable the employee to obtain reasonable accommodation.

(2)This section shall not apply to an employee whose contract of service-

(a) contains a provision which consolidates as part of the basic wage or salary of the employee, an element intended to be used by the employee as rent or which is otherwise intended to enable the employee to provide himself with housing accommodation; or

(b) is the subject matter of or is otherwise covered by a collective agreement which provides consolidation of wages as provided in paragraph (a).

14. There was no evidence that the salary paid to the Claimants was inclusive of hose allowance. I therefore award house allowance at the rate of 15% of the basic salary and adopt the resultant figure of Kshs. 7,475 for purposes of this claim.

15. Similarly, in the absence of leave records to show that the Claimants had utilised their annual leave, the claim thereon also succeeds and is allowed.

16. No basis was laid for the claim for gratuity and the claims for rest days and public holidays were not proved. These claims therefore fail and are dismissed.

17. In the end, I enter judgment in favour of the 1st and 3rd Claimants as follows:

1st Claimant: Pascal Lucas Mwabuni

a) House allowance for 46 months @ Kshs. 975…………………….Kshs. 44,850

b) Leave pay for 3 years (7,475/30x21x3)……………………………………….15,698

c) Prorata leave for 10 months (7,475/30x1. 75x10)…………………………4,360

Total………………………………………………………………………………………..64,908

3rd Claimant:Lennox Kazungu Mwabaya

d) House allowance for 46 months @ Kshs. 975…………………….Kshs. 44,850

e) Leave pay for 3 years (7,475/30x21x3)……………………………………….15,698

f) Prorata leave for 10 months (7,475/30x1. 75x10)…………………………4,360

Total………………………………………………………………………………………..64,908

18. The 2nd Claimant Joseph Katana Yaa did not appear in court to prove his claim which is hereby dismissed.

19. The amounts awarded to the 1st and 3rd Claimants will attract interest at court rates from the date of judgment until payment in full.

20. The 1st and 3rd Claimants will have the costs of the case.

21. Orders accordingly.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 20TH DAY FEBRUARY 2020

LINNET NDOLO

JUDGE

Appearance:

Mr. Jumbale for the Claimants

No appearance for the Respondent