[2017] KEELRC 1134 (KLR)
The court found that the Claimant had established he was employed by the Respondent and that his employment was terminated without notice or valid reason. The Respondent failed to attend court or provide any justification for the termination, thus failing to discharge its statutory burden under the Employment Act...
Source-derived case information.
- Citation
- [2017] KEELRC 1134 (KLR)
- Parties
- Claimant: Samuel Kipkemoi Langa't; Respondent: China Road & Bridge Corporation [Kenya]
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 826 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed for the Claimant.
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Notice Pay, Compensation for Termination, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kipkemoi Langa't
Claimant
China Road & Bridge Corporation [Kenya]
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 is entitled to salary in lieu of notice and compensation for unfair termination.
- 3 Whether the Claimant is entitled to a Certificate of Service and costs.
Ratio Decidendi
The court found that the Claimant had established he was employed by the Respondent and that his employment was terminated without notice or valid reason. The Respondent failed to attend court or provide any justification for the termination, thus failing to discharge its statutory burden under the Employment Act 2007. The court held that the termination was unfair as the Claimant was not given a hearing and no valid reason was provided. The Claimant was awarded one month’s salary in lieu of notice and three months’ salary as compensation for unfair termination, reflecting his short period of service. The court also ordered the Respondent to issue a Certificate of Service and pay costs...
Court Disposition
Claim partly allowed for the Claimant.
Orders
- Declaration that termination was unfair.
- Respondent to pay Claimant 1 month salary in lieu of notice at Kshs. 43,456.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 826 OF 2016
BETWEEN
SAMUEL KIPKEMOI LANGA’T …………….…………….....…CLAIMANT
VERSUS
CHINA ROAD & BRIDGE CORPORATION [KENYA]…RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
J.K. Mwarandu & Company Advocates for the Claimant
No appearance for the Respondent
_____________________________
JUDGMENT
1. The Claimant filed his Statement of Claim on 18th October 2016. He states he was employed by the Respondent Company in February 2016, as a Driver. His Contract was terminated by the Respondent on 7th September 2016, without notice or valid reason. As at the time of termination, he earned a gross monthly salary of Kshs. 43,456. He feels termination was unfair, and seeks Judgment against the Respondent for:-
a) A declaration that termination was unfair.
b) 2 months’ salary in lieu of notice at Kshs. 86,912
c) Equivalent of 12 months’ salary in compensation for unfair termination at Kshs. 521,473
Total …………….Kshs.651,841
d) costs
e) Any other suitable relief.
2. There are on record Affidavits of Service sworn by a Process-Server, showing the Respondent was served with Notice of Summons, the Statement of Claim and Hearing Notice. The Respondent did not make an appearance and failed to attend Court throughout. The Claimant gave evidence by way of formal proof, on 13th June 2017.
3. He reiterated the averments contained in his Pleadings and Witness Statement. He adopted copies of documents attached to the Statement of Claim as his exhibits.
The Court Finds:-
4. The Claimant has formally shown he was employed by the Respondent Company as a Driver in February 2016. He worked for 7 months. His contract was terminated by the Respondent without notice or justification. He last earned a monthly gross salary of Kshs. 43,456.
5. He has shown termination was unfair, as required under section 47 of the Employment Act 2007. The Respondent gave no evidence, and filed nothing to justify termination under this provision. Termination was not based on valid reason or reasons under Sections 43 and 45 of the Employment Act 2007. The Claimant was not accorded any hearing before termination, as required under Sections 41 and 45 of the Act. Termination was unfair.
6. His rate of monthly pay is not disputed.
7. He is granted 1 month salary in lieu of notice, at Kshs. 43,456.
8. He served the Respondent for 7 months. His demand for 12 months’ salary in compensation for unfair termination, is not in consonance with his length of service.
9. He is granted 3 months’ salary in compensation for unfair termination, at Kshs. 130,368.
10. Costs to the Claimant.
11. Interest granted at 14% per annum from the date of Judgment, till payment is made in full.
12. Although the Claimant does not expressly pray for release of his Certificate of Service by the Respondent, he lists its withholding by the Respondent, as one of the particulars of breach under paragraph 10 of the Claim.
13. Under the prayer for any other suitable relief, the Court orders the Respondent shall release to the Claimant his Certificate of Service under Section 51 of the Employment Act 2007.
IN SUM, IT IS ORDERED:-
a) It is declared termination was unfair
b) The Respondent shall pay to the Claimant 1 month salary in lieu of notice at Kshs. 43,456 and the equivalent of 3 months’ salary in compensation for unfair termination at Kshs. 130,368 – total Kshs. 173,824.
c) Costs to the Claimant.
d) Interest granted at 14% per annum from the date of Judgment, till payment is made in full.
e) Certificate of Service to issue.
Dated and delivered at Mombasa this 23rd day of June 2017
James Rika
Judge