[2017] KEELRC 1388 (KLR)
The court found that the claimant was employed by the respondents as a waiter from January 2010 to July 2016, and her termination was on account of redundancy. The respondents failed to serve the requisite redundancy notice as required by section 40 of the Employment Act, 2007, rendering the termination unfair. The...
Source-derived case information.
- Citation
- [2017] KEELRC 1388 (KLR)
- Parties
- Claimant: Rachel Wanjiku Kiruri; Respondent: Michael Muraya Kirara; Respondent: Harisson Mbaru Kihara
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 187 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- B Ongaya
- Legal Topics
- Redundancy Procedure, Unfair Termination, Severance Pay, Annual Leave Entitlement, Underpayment of Wages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rachel Wanjiku Kiruri
Claimant
Michael Muraya Kirara
Respondent
Harisson Mbaru Kihara
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated on account of redundancy.
- 2 Whether the claimant is entitled to terminal dues including notice pay, severance, annual leave, underpayment, and service pay.
- 3 Whether the claimant is entitled to compensation for unfair termination.
Ratio Decidendi
The court found that the claimant was employed by the respondents as a waiter from January 2010 to July 2016, and her termination was on account of redundancy. The respondents failed to serve the requisite redundancy notice as required by section 40 of the Employment Act, 2007, rendering the termination unfair. The court awarded the claimant one month’s pay in lieu of notice and nine months’ pay as compensation for unfair termination under section 49(1)(c). The claimant was also entitled to payment for accrued annual leave, severance pay, underpayment of wages, and service pay, calculated based on statutory entitlements and the period of service. The claim for house allowance was...
Court Disposition
judgment for the claimant
Orders
- The respondents to pay the claimant Kshs.399,515.40 by 01.07.2017, failing which interest at court rates to apply from the date of judgment until full payment.
- The respondents to pay the claimant’s costs of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO.187 OF 2016
RACHEL WANJIKU KIRURI.............................. CLAIMANT
VERSUS
MICHAEL MURAYA KIRARA.................1ST RESPONDENT
HARISSON MBARU KIHARA...............2ND RESPONDENT
(BOTH RESPONDENTS TRADING AS METUMI BAR)
(Before Hon. Justice Byram Ongaya on Friday 12th May, 2017)
JUDGMENT
The claimant filed the memorandum of claim on 07. 09. 2016 through Kirubi Mwangi Ben & Company Advocates. The claimant prayed for judgment against the respondent for:
a) Payment of terminal dues of Kshs. 574, 461. 00 being one month pay in lieu of notice Kshs. 10, 497. 00; public holidays Kshs. 10, 497. 00; annual leave for 6 years Kshs. 44, 087. 00; service gratuity at 15 days per year for 6 years served Kshs.31, 491. 00; underpayment of wages Kshs.207, 941. 00; house allowance Kshs.130, 688. 00; and 12 months pay for compensation for unfair termination Kshs.125, 964. 00.
b) Costs of the suit and interest.
c) Any other or better relief the honourable court may deem fit to grant.
The response to the claim was filed on 11. 10. 2016 through Kimwere Josphat & Company Advocates. The respondent prayed that the respondent’s claim be dismissed with costs.
The parties agreed that the suit be determined on the basis of pleadings, documents and submissions on record. The court has taken into account all the material on record and makes findings on the issues in dispute as follows:
a) There is no dispute that the parties were in a contract of employment. The court finds that the claimant was employed by the respondents as a waiter at the bar from 01. 01. 2010 to July 2016 when her services were terminated on account of redundancy and as per the respondent’s submissions and pleading. There is no reason to doubt the respondent’s date of commencement of the employment and the claimant’s position that it was in August 2009 was not justified or established by way of evidence. Thus the claimant was in employment of the respondent for 5 years and 7 months making 67 months of service.
b) As redundancy notice was not served per section 40 of the Employment Act, 2007 and taking into account the period of service of 3 years, the claimant is awarded one month pay in lieu of termination notice and a further 9 months’ pay under section 49(1) (c) of the Act. While making that award the court finds that the claimant was unfairly dismissed as the relevant redundancy notice was not served. The award is for Kshs.84, 348. 00 the claimant’s statutory monthly pay being Kshs. 9, 372. 0 0. In making the award the court has considered the circumstances leading to redundancy as well as the considerably long time the claimant had been in the respondents’ service.
c) The claim on public holidays is awarded at Kshs. 21, 243. 20 as submitted for respondents.
d) As the claimant served for 5 years and 7 months, annual leave accrued in view of section 28(1) (a) of the Act. The claimant is awarded Kshs.52, 327. 00 being pay in lieu annual leave over the period of service.
e) As the claimant served for 5 complete years, severance pay is awarded at Kshs. 23, 430. 00 being half month pay for each year served in view of section 40 (1) (g) of the Act.
f) The claimant is awarded underpayment at 67 months served making statutory monthly wage Kshs. 9, 372 less monthly wage as paid Kshs.6000 per month and the difference is Kshs.3, 372. 0 times 67 months thus Kshs.225, 924. 00.
g) Service pay is awarded at Kshs.44, 673. 20 as submitted for the respondent.
h) There was no evidence on the claim for house allowance and the same is deemed unjustified. The basis of the formulae as invoked in the submissions for the respondent was not explained or justified.
In conclusion judgment is entered for the claimant against the respondents for:
a) The respondents to pay the claimant Kshs.399, 515. 40 by 01. 07. 2017 failing interest at court rates to be payable thereon from the date of this judgment till full payment.
b) The respondents to pay the claimant’s costs of the suit
Signed, datedanddeliveredin court atNyerithisFriday, 12th May, 2017.
BYRAM ONGAYA
JUDGE