[2023] KEELRC 3371 (KLR)
The court found that the claimant's employment was terminated without valid reason and without adherence to fair procedure, in violation of Sections 36, 41, 43, and 45 of the Employment Act, 2007. The respondent failed to defend the suit or contradict the claimant's evidence. The court held that the claimant had...
Source-derived case information.
- Citation
- [2023] KEELRC 3371 (KLR)
- Parties
- Applicant: Levi Keronye Shengo; Respondent: Nihal Construction Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Employment and Labour Relations Cause 413 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- MN Nduma
- Legal Topics
- Unlawful Termination, Terminal Benefits, Compensation for Unfair Dismissal, Employment Contracts, Statutory Entitlements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Levi Keronye Shengo
Applicant
Nihal Construction Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unlawful and unfair under the Employment Act, 2007.
- 2 Whether the claimant is entitled to compensation and terminal benefits as claimed.
- 3 Whether the claims for terminal benefits are time-barred under Section 90 of the Employment Act, 2007.
Ratio Decidendi
The court found that the claimant's employment was terminated without valid reason and without adherence to fair procedure, in violation of Sections 36, 41, 43, and 45 of the Employment Act, 2007. The respondent failed to defend the suit or contradict the claimant's evidence. The court held that the claimant had proved his case on a balance of probabilities. However, claims for terminal benefits were limited to a three-year period preceding the suit, as required by Section 90 of the Employment Act. The court awarded the claimant six months' salary as compensation for unfair termination and terminal benefits for the non-time-barred period, together with interest, costs, and a certificate...
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant Kshs. 62,400 as compensation for unfair termination.
- The respondent shall pay the claimant Kshs. 118,804 as terminal benefits.
Full Case Text
Judgment text and source record
25 paragraphs
Shengo v Nihal Construction Limited (Employment and Labour Relations Cause 413 of 2017) [2023] KEELRC 3371 (KLR) (20 December 2023) (Judgment)
Neutral citation: [2023] KEELRC 3371 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Cause 413 of 2017
MN Nduma, J
December 20, 2023
Between
Levi Keronye Shengo
Claimant
and
Nihal Construction Limited
Respondent
Judgment
1. The claimant filed suit on 2nd March 2017 against the respondent seeking compensation for unlawful termination and payment of terminal benefits including:a.Payment for holidays worked for 8 years (12x8) x 10,400 x 1/225x3)= Kshs. 13,312/=.b.Travelling allowance for 8 years @10,400/= per year Kshs. 83,200/=.c.Payment in lieu of untaken leave days for 8 years Kshs,. 83,200/=.d.Gratuity for 8 years served @ 15 days salary per year Kshs. 41,600/=e.Payment in lieu of one month notice Kshs. 10,400/= andf.Costs and interest
2. Summons to enter appearance and statement of claim were served on the respondent on 18th May 2017 by one Jacob Okwembe Mulanda a court process server of the court. He filed an affidavit of service sworn to on 18th May 2017.
3. The respondent did not enter appearance nor file a statement of defence to the suit. The matter proceeded to formal proof relying on the statement of claim, verifying affidavit and witness statement of the claimant who told the court that he was employed by the respondent in 2008 and worked diligently for the respondent until 18th October 2016 when his services were terminated. That his salary was Kshs. 10,400/= per month. That he was working as usual on 18th October 2012, when a representative of the company instructed him to leave the company premises at once otherwise he would have the claimant forcefully removed.
4. The claimant approached the respondent requesting the certificate of service but was not given. The respondent also failed to pay the claimant full terminal benefits. That the termination was unlawful and unfair. The claimant seek payment of the terminal benefits and compensation for the unlawful and unfair termination.
5. The claimant had served a demand notice on the respondent dated 17th November 2016 prior to the filing of the suit.
6. The suit having been undefended, the court finds that the claimant has proved on a balance of probability that his employment was terminated on 11th October 2020 for no valid reason and the respondent did not follow fair procedure in terminating the employment,
7. The termination was therefore unlawful and unfair and in violation of section 36, 41, 43 and 45 of the Employment Act, 2007.
8. The claimant was a general labourer. He had served the respondent diligently for a period of 8 years. He was sent home without notice and he suffered loss and damage. He was not compensated for the loss. The court now considering the factors set out under Section 49(4) of the Employment Act, awards the claimant the equivalent of six (6) months’ salary being compensation in terms of Section 49(1) (c) in the sum of Kshs. 62,400/=.
Terminal Benefits. 9. The terminal benefits sought by the claimant under paragraph 11 of the statement of claim have not been contradicted however the claims made shall be limited to a period of three years only. The rest of the claims are time barred by dint of Section 90 of the Employment Act 2007. I therefore award the claimant as follows:a.Unpaid holidays Kshs. 4,404/=.b.Travelling allowance Kshs. 31,200/=.c.Untaken leave Kshs. 31,200/=.d.Gratuity Kshs. 41,600/=.e.Payment in lieu of one month notice Kshs. 10,400/=.
10. In the final analysis judgment is entered in favour of the claimant against the respondent as follows:-a.Kshs. 62,400/= in compensation.b.Kshs. 118,804/= terminal benefitsTotal amount Kshs. 181,204/=.c.Interest at court rates from date of judgment till the payment in full.d.Respondent to provide the claimant with certificate of service within 30 days of this judgment.e.Costs of the suit
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2023MATHEWS N. NDUMAJUDGEAppearancesMs. Kerubo holding brief for Ms. Arati for claimant