[2020] KEELRC 1362 (KLR)
The court found that both claimants failed to prove that they had given the required one month resignation notice to the respondent. Despite their claims of having issued such notices, neither claimant produced any documentary evidence or called upon the respondent to produce the alleged notices. The court accepted...
Source-derived case information.
- Citation
- [2020] KEELRC 1362 (KLR)
- Parties
- Applicant: Patroba Ojwang Obondi; Applicant: Evans Morara Miruka; Respondent: Receivers of KSC International Limited (Under Receivership)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2195 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim dismissed; each party to bear own costs.
- Judges
- B Ongaya
- Legal Topics
- Resignation Without Notice, Salary in Lieu of Notice, Termination Procedure, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patroba Ojwang Obondi
Applicant
Evans Morara Miruka
Applicant
Receivers of KSC International Limited (Under Receivership)
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimants resigned without giving the requisite one month notice.
- 2 Whether the respondent was entitled to withhold April 2015 salary in lieu of notice.
Ratio Decidendi
The court found that both claimants failed to prove that they had given the required one month resignation notice to the respondent. Despite their claims of having issued such notices, neither claimant produced any documentary evidence or called upon the respondent to produce the alleged notices. The court accepted the respondent's position that the claimants resigned without notice and held that the respondent was entitled to withhold the April 2015 salary in lieu of notice, as permitted under the Employment Act. The court also noted the parties' consent that a certificate of service be issued indicating the last day of work as 05.05.2015. Each party was ordered to bear its own costs.
Court Disposition
Claim dismissed; each party to bear own costs.
Orders
- Each party to bear own costs of the suit.
- Certificate of service to issue within 7 days indicating last day at work as 05.05.2015.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 2195 OF 2015
PATROBA OJWANG OBONDI........................................................1ST CLAIMANT
EVANS MORARA MIRUKA...........................................................2ND CLAIMANT
VERSUS
RECEIVERS OF KSC INTERNATIONAL LIMITED
(UNDER RECEIVERSHIP...................................................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 6th March, 2020)
JUDGMENT
The claimants filed the memorandum of claim on 09. 12. 2015 through Ng’ani & Oluoch Advocates. The respondent file the memorandum of response on 13. 02. 2019 through Walker Kontos Advocates.
The case came up for hearing on 27. 11. 2019 and the claimants dropped claim for severance pay and the parties recorded orders thus:
1) By consent only issue for determination is whether the claimants at the end of April 2015 resigned without giving notice.
2) By further consent a certificate of service to issue in 7 days that last day at work was 05. 05. 2015.
Counsel for the respondent in his opening remarks at the hearing stated that the respondent’s defence was that the claimants worked in April 2015 and resigned by walking away without due one month notice.
The 1st claimant testified that the claimants resigned from employment because the respondent had failed to pay them salaries for the previous 6 months. Arrears of 5 months were paid end of March 2015. As at that time April 2015 was beginning. He testified that he had done a resignation notice but he had not retained a copy. He had no copy of the resignation notice to produce at the hearing. He stated that he had written the letter in March 2015 indicating that he’d leave employment at the end of March 2015. He testified further that he gave the notice towards the end of March 2015. The Court has considered the evidence and returns that the 1st claimant has failed to show that he gave a valid one month termination notice.
The 2nd claimant testified that in early April they were paid 5 months’ salary arrears. Like the 1st claimant he resigned on 05. 05. 2015. The salary for April 2015 was not paid. He testified that his resignation notice was not received and he had not exhibited in Court such notice. He testified that he had given the notice between 20th and 25th March 2015. The notice period was 26 days. He admitted that if he gave the notice as testified then he ought to have left by 20. 04. 2015 but he had in fact resigned on 05. 05. 2015. The Court finds that the 2nd claimant has failed to show that he gave the requisite termination notice.
The Court finds that while alleging that they gave the termination notices, the claimants never served a notice that the respondent produces such notices. The Court finds that there is no reason to doubt the respondent’s case and evidence that the claimants resigned without giving due termination notice. Thus the Court finds that the respondent was entitled to mitigate its position by withholding the April 2015 salary in lieu of the termination notices.
The Court has considered all circumstances of the case and the consents recorded at the hearing and considers that each party shall bear own costs of the suit.
In conclusion the suit is hereby determined with orders each party to bear own costs of the suit.
Signed, datedanddeliveredin court atNairobithisFriday, 6th March, 2020.
BYRAM ONGAYA
JUDGE