[2016] KEELRC 661 (KLR)
The court found that although the respondent did not defend the claim, the evidence indicated the claimant's termination was due to a downturn in business caused by road construction, amounting to redundancy. However, the respondent failed to follow the statutory procedure for redundancy under the Employment Act,...
Source-derived case information.
- Citation
- [2016] KEELRC 661 (KLR)
- Parties
- Claimant: Peter Nzioka Mweu; Respondent: New Visa Place Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1929 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; claimant awarded compensation for wrongful termination and redundancy.
- Judges
- NJ Abuodha
- Legal Topics
- Unfair Termination, Redundancy, Severance Pay, Notice Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Nzioka Mweu
Claimant
New Visa Place Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination amounted to unfair dismissal or redundancy.
- 2 Whether the claimant is entitled to compensation for unfair termination and terminal dues.
- 3 Whether the respondent followed due process in terminating the claimant's employment.
Ratio Decidendi
The court found that although the respondent did not defend the claim, the evidence indicated the claimant's termination was due to a downturn in business caused by road construction, amounting to redundancy. However, the respondent failed to follow the statutory procedure for redundancy under the Employment Act, including notice and severance pay. The court therefore held the termination to be a wrongful declaration of redundancy and awarded the claimant compensation, including notice pay, salary arrears, severance pay, and damages for unfair termination.
Court Disposition
Claim allowed in part; claimant awarded compensation for wrongful termination and redundancy.
Orders
- Respondent to pay claimant one month’s salary in lieu of notice (Kshs 13,000).
- Respondent to pay claimant salary for the month of October (Kshs 13,000).
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1929 OF 2014
PETER NZIOKA MWEU……………………………………………CLAIMANT
VERSUS
NEW VISA PLACE LTD………………………………..……...RESPONDENT
JUDGMENT
1. By memorandum of claim filed on 30th October, 2014, the claimant averred that he was employed by the respondent as a Chef on a monthly salary of Kshs.13,000/= per month.
2. He worked until 30th October, 2013 when he averred that the respondent terminated his services without any just cause and without any notice. The claimant further averred that upon termination the respondent never paid him his terminal dues.
3. The claimant complained further that during the period of his employment he never proceeded on annual leave.
4. The claimant consequently sought from the Court an order for compensation directed to the respondent for wrongful dismissal and unfair termination of his services.
5. The respondent neither filed any response to the claim nor attended Court at the hearing to cross-examine the claimant.
6. In his testimony in Court, the claimant repeated the averments in the claim and added there was road construction which affected the respondent’s business.
7. The claimant attached with his memorandum of claim a letter dated 16th December, 2013 which certified that the claimant worked for the respondent as a chef from January, 2004 to October, 2003. In the letter the respondent commended the claimant as a team player, punctual, and interacted with his colleagues. The letter further recommended him to any prospective employer.
8. The matter though not defended seems to have been a case of redundancy or loss of work due to fall in business performance. The claimant himself stated that the road construction around the respondent’s business premises interfered with the flow of customers.
9. The mere absence of the respondent in the proceedings does not automatically make the claimant’s averments wholly reliable.
10. The Court in the circumstances regards the claimant’s separation from his employment as wrongful declaration of redundancy and hereby orders that he be compensated as follows:-
Kshs
(a) One month’s salary in lieu of notice…………………13,000. 00
(b) Salary for the month of October……………………..13,000. 00
(c) Severance pay at the rate of 15 days salary for each complete year of service…………….81,250. 00
(d) Four months salary for unfair termination
of services…………………………………………………..52,000. 00
159,250. 00
(e) Costs of the suit.
11. It is so ordered.
Dated at Nairobi this 2nd day of September 2016
Abuodha Jorum Nelson
Judge
Delivered this 2nd day of September 2016
In the presence of:-
…………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha Jorum Nelson
Judge