[2018] KEELRC 666 (KLR)
The court found that the Claimant's employment was terminated without written notice and without a hearing, in violation of sections 35 and 41 of the Employment Act, 2007. The Respondent failed to rebut the Claimant's evidence or participate in the proceedings. The court held that the termination was unfair and...
Source-derived case information.
- Citation
- [2018] KEELRC 666 (KLR)
- Parties
- Claimant: Rosanael Kariue Odero; Respondent: Kentmere (1986) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 67 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment for the Claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Notice of Termination, Right to Hearing, Terminal Benefits, Compensation for Unfair Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosanael Kariue Odero
Claimant
Kentmere (1986) Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unfair under the Employment Act, 2007.
- 2 Whether the Claimant was entitled to notice or a hearing prior to termination.
- 3 Whether the Claimant is entitled to terminal dues and compensation for unfair termination.
Ratio Decidendi
The court found that the Claimant's employment was terminated without written notice and without a hearing, in violation of sections 35 and 41 of the Employment Act, 2007. The Respondent failed to rebut the Claimant's evidence or participate in the proceedings. The court held that the termination was unfair and awarded the Claimant one month’s pay in lieu of notice, compensation equivalent to 12 months’ gross salary due to her long service, and the outstanding balance of terminal benefits as claimed. The total award was Kshs 472,603.50, plus costs on half scale.
Court Disposition
Claim allowed. Judgment for the Claimant.
Orders
- The Respondent shall pay the Claimant Kshs 23,372 in lieu of notice.
- The Respondent shall pay the Claimant Kshs 116,123.50 as balance of terminal benefits.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 67 OF 2014
ROSANAEL KARIUE ODERO..........................CLAIMANT
v
KENTMERE (1986) LIMITED.....................RESPONDENT
JUDGMENT
1. Rosanael Kariue Odero (Claimant) was offered employment through a letter dated 28 January 1992 as a Receptionist by Kentmere (1986) Ltd (Respondent).
2. On 24 January 2014, the Claimant instituted legal proceedings against the Respondent alleging unfair termination of employment on 15 May 2013.
3. Although served with the Memorandum of Claim and Summons, the Respondent did not file a Response, and the Cause proceeded as an undefended Cause on 12 July 2018 (affidavit of service on record depose that the Respondent’s Manager Paul Migithi was served on 10 February 2014 and accepted service but declined to sign in acknowledgment thereof).
4. The Claimant testified and closed her case.
Unfair termination of employment
5. The Claimant’s testimony was that in May 2013 she was recalled by her Manager while on leave and upon reporting they engaged in discussions.
6. During the discussions, the Manager walked out allegedly because the Claimant was talking in a loud voice, and the next day the Manager told her that her services were no longer required. He instructed her to see the Accountant for her dues.
7. The Claimant testified that the dismissal was unfair because there was no notice of termination of employment or a hearing.
8. In terms of section 35 of the Employment Act, 2007, written notice of termination of employment is required and because the uncontroverted evidence before Court is that there was no notice, the Court finds that the termination of the Claimant’s employment was unfair.
9. There was also no evidence that a hearing as contemplated by section 41 of the Act was held or conducted.
10. The Claimant is therefore entitled to 1 month pay in lieu of notice (basic pay was Kshs 23,372/- per month).
11. Considering the length of the Claimant’s service of 21 years, the Court is of the view that 12 months’ compensation would be fair (gross monthly pay was Kshs 27,759/-).
Terminal dues
12. The Respondent issued the Claimant with a schedule of terminal benefits which were to be paid in instalments.
13. The Claimant’s testimony that out of benefits, Kshs 116,123/50 remained outstanding was not rebutted and the Court will allow the head of claim.
Conclusion and Orders
14. The Court finds and holds that the termination of the Claimant’s employment was unfair and awards her
(a) Pay in lieu of notice Kshs 23,372/-
(b) Balance of benefits Kshs 116,123/50
(c) Compensation Kshs 333,108/-
TOTAL Kshs 472,603/50
15. Claimant to have costs on half scale.
Delivered, dated and signed in Nairobi on this 9th day of November 2018.
Radido Stephen
Judge
Appearances
For Claimant Ms. Martins instructed by Oyatta & Associates
Respondent did not participate
Court Assistant Lindsey