[2015] KEELRC 1239 (KLR)
The court found that the Claimant, having worked continuously for the Respondent from 1991 to 2013, was deemed to be on a monthly contract by operation of law under Section 37(1)(a) of the Employment Act 2007. The Respondent terminated the Claimant's employment without notice or payment of terminal dues, and did not...
Source-derived case information.
- Citation
- [2015] KEELRC 1239 (KLR)
- Parties
- Claimant: Paul Amukobole; Respondent: Polypipes Limited (Steel Division)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 299 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment_for_claimant
- Judges
- AN Makau
- Legal Topics
- Unlawful Termination, Casual Employment, Notice Pay, Service Pay, Compensation for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Amukobole
Claimant
Polypipes Limited (Steel Division)
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was wrongful and unlawful.
- 2 Whether the Claimant is entitled to terminal benefits including notice pay, service pay, and compensation.
- 3 Whether the Claimant is entitled to costs and interest.
Ratio Decidendi
The court found that the Claimant, having worked continuously for the Respondent from 1991 to 2013, was deemed to be on a monthly contract by operation of law under Section 37(1)(a) of the Employment Act 2007. The Respondent terminated the Claimant's employment without notice or payment of terminal dues, and did not file a defence or contest the Claimant's evidence. The court held that the Claimant was entitled to notice pay, service pay for 15 days per year worked due to lack of NSSF contributions, and compensation for unfair termination. The court awarded the Claimant Kshs. 138,060/-, costs, and interest.
Court Disposition
judgment_for_claimant
Orders
- Judgment entered for the Claimant for Kshs. 138,060/-.
- The Claimant is awarded costs of the suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 299 OF 2014
PAUL AMUKOBOLE………………………………….…CLAIMANT
VERSUS
POLYPIPES LIMITED (STEEL DIVISION)..…..…RESPONDENT
JUDGMENT
The Claimant filed his suit on 28th February 2014 seeking resolution of the dispute he framed as wrongful and unlawful termination of the Claimant’s services and failure by the Respondent to pay terminal benefits to the Claimant. It was his averment that the Respondent employed him in February 1991 on a daily wage of Kshs. 354 later increased to Kshs. 457 a day translating to a monthly income of Kshs. 9,204. He averred that he worked with diligence and loyalty until 17th January 2013 when the Respondent unlawfully terminated his services without paying him his dues or notice. He sought notice pay of Kshs. 9,204/-, leave accrued for 21 years Kshs. 141,741. 60, service pay of Kshs. 101,244/- making a total of Kshs. 252,189. 60. He also sought compensation to the maximum of 12 months as well as costs of the suit and interest.
The Respondent entered appearance through the firm of Okong’o, Wandago & Co. Advocates and did not file a defence.
The Claimant testified on 26th January 2015 and stated that he was employed by the Respondent in February 1991 and worked until 17th January 2013 when he was told there was no work. He testified that he used to work as a casual. He stated that he worked in one shift and there were two shifts each day. He testified that he worked from 8. 00am to 8. 00pm from Monday to Saturday and that he worked during the day. He testified that he did not receive any pay on termination.
He did not call any witnesses though in his Memorandum of Claim he had listed Kennedy Sikinyi Namai, Kennedy Kibiega and Livingstone Oundo as his witnesses.
The Claimant did not attach any documents to prove his claim and all the Court has to rely on is his pleadings and testimony. He stated that he worked as a casual from 1991 till termination on 17th January 2013. Under the Employment Act 2007, the contracts of service of casuals automatically morph into monthly contracts under Section 37(1)(a). In this case the Claimant was on a monthly contract earning Kshs. 9,204/-.
His services were terminated on 17th January 2013 meaning he did not get any notice. He would be entitled to notice. He also would be entitled to severance pay as there is no indication of payment of NSSF dues. He is thus entitled to receive payment of 15 days service for each year worked and he thus would be entitled to Kshs. 101,244/- under this head. He was terminated without just cause and I would award him compensation for 3 months being Kshs. 27,612/-. He will also have costs of the suit.
In the final analysis I enter judgment for the Claimant for Kshs. 138,060/-, costs and interest on the sum from date of judgment till payment in full.
Orders accordingly.
Dated and delivered at Nairobi this 9th day of February 2015
Nzioki wa Makau
JUDGE