[2018] KEELRC 640 (KLR)
The court found that the claimant's evidence was uncontroverted as the respondent failed to file a response or attend the hearing. The claimant established that he was dismissed after raising concerns about unremitted NSSF deductions, and the respondent did not provide any valid reason or follow due process in the...
Source-derived case information.
- Citation
- [2018] KEELRC 640 (KLR)
- Parties
- Claimant: Richard Makau Kyengo; Respondent: The Hood Restaurant
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 174 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment entered for the claimant.
- Judges
- DO Ogal
- Legal Topics
- Unfair Termination, Service Pay, Salary in Lieu of Notice, Compensation for Loss of Earnings, Annual Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Makau Kyengo
Claimant
The Hood Restaurant
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was unfairly terminated by the respondent.
- 2 Whether the claimant is entitled to service pay, salary in lieu of notice, compensation, accrued leave, and pay for days worked.
- 3 Whether the respondent failed to remit statutory deductions (NSSF) as required by law.
Ratio Decidendi
The court found that the claimant's evidence was uncontroverted as the respondent failed to file a response or attend the hearing. The claimant established that he was dismissed after raising concerns about unremitted NSSF deductions, and the respondent did not provide any valid reason or follow due process in the termination. The court held that the termination was unfair and unlawful. The claimant was awarded service pay for 7 years, salary in lieu of notice, pay for accrued leave, pay for days worked, and compensation equivalent to 7 months' salary, as the court found the claim substantiated on a balance of probabilities. Costs and interest were also awarded to the claimant.
Court Disposition
Claim allowed. Judgment entered for the claimant.
Orders
- The respondent shall pay the claimant Kshs.18,200 as service pay.
- The respondent shall pay the claimant Kshs.5,200 as salary in lieu of notice.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 174 OF 2013
(Before Hon. Lady Justice Maureen Onyango)
RICHARD MAKAU KYENGO.....................................CLAIMANT
VERSUS
THE HOOD RESTAURANT.....................................RESPONDENT
JUDGMENT
By memorandum of claim dated 6th February 2013, the claimant avers that his employment was terminated unfairly by the respondent. He prays for the following remedies –
a) A declaration that the termination was unlawful, untimely;
b) An order that the respondent pay the claimant his dues and benefits of Kshs. 105,387. 00; as tabulated below.
i) Service pay Kshs.24,267
ii) Salary in lieu of notice Kshs.5,200
iii) Compensation for loss of earnings Kshs.62,400
iv) Leave days accrued for 3 years Kshs.10,920
v) Days Worked Kshs.2,600
Total Kshs.105. 387
c) Costs of the claim and interest
The respondent was served but did not file appearance or defence and further did not attend court for hearing.
At the hearing the claimant testified that he was employed by the respondent as a waiter on 1st April 2004 and was dismissed on 15th September 2011. The reasons for dismissal was that he had obtained a statement from NSSF which indicated that the respondent had not been remitting NSSF even though deducted from his salary. When he presented the statement to the employer and asked that the payments be made he was told not to report for work the following day.
The claimant testified that the dismissal was unfair because he was not given any reason for dismissal and was not paid for days worked. His last salary was Kshs.5,200.
The claimant testified that after termination, he reported to the Labour Officer but the respondent did not respond to the letters from the Labour Officer. He prays for judgment as set out in his claim.
Determination
The claimant’s evidence is not controverted as the respondent did not file any response to the claim or attend court for the hearing. Further, the respondent did not respond to the letters from the Labour Office which reflect that a Mr. Mwaura whose telephone number is stated as 0734865998 was called by the Labour Officer and promised to pay the claimant but did not pay.
I am satisfied that the claimant has proved his case on a balance of probabilities and declare the termination of his employment by the respondent unfair.
Remedies
The claimant prayed for service pay which I award him at Kshs.18,200 being 15 days salary for 7 completed years of service. The claimant further prayed for one month’s salary in lieu of notice which I award him at Kshs.5,200. The claimant prayed for annual leave accrued for 3 years. He testified that he took leave only once during the period he was in service. I award him pay in lieu of leave for three years in the sum of Kshs.10,920 as prayed.
The claimant further prayed for salary for 15 days worked at Kshs.2,600 which I award him.
The claimant prayed for compensation in the sum of Kshs.62,400 being 12 months’ salary. Having worked for only 7 years and 4 months and taking into account the reasons for termination, I award him 7 months’ salary as compensation at Kshs.36,400.
The respondent shall pay claimant’s costs and the decretal sum shall attract interest at court rates from date of judgment.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 2ND DAY OF NOVEMBER 2018
MAUREEN ONYANGO
JUDGE