[2015] KEELRC 739 (KLR)
The court found that the Claimants were employed by the Respondent and that their termination was effected verbally without any hearing or valid reason. The Respondent failed to provide any evidence or justification for the terminations and did not comply with statutory requirements under the Employment Act,...
Source-derived case information.
- Citation
- [2015] KEELRC 739 (KLR)
- Parties
- Applicant: Sophia Kerre; Applicant: Marion Karuiru; Applicant: Jane Mulekye Uswii; Applicant: Anne Jepkorior Kotut; Applicant: Eudiah Cheruiyot; Applicant: Martin Ogolla Adada; Applicant: Zachary Kirori; Applicant: Moses Otieno Odongo; Applicant: Everlyne Akoth; Applicant: Everlyne Atieno Odeny; Applicant: Oscar Ivali; Respondent: Augustana College Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1241 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in full for all Claimants.
- Judges
- HS Wasilwa
- Legal Topics
- Unfair Termination, Terminal Benefits, Procedural Fairness, Notice Pay, Gratuity, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sophia Kerre
Applicant
Marion Karuiru
Applicant
Jane Mulekye Uswii
Applicant
Anne Jepkorior Kotut
Applicant
Eudiah Cheruiyot
Applicant
Martin Ogolla Adada
Applicant
Zachary Kirori
Applicant
Moses Otieno Odongo
Applicant
Everlyne Akoth
Applicant
Everlyne Atieno Odeny
Applicant
Oscar Ivali
Applicant
Augustana College Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimants' employment was unlawful and unfair.
- 2 Whether the Claimants are entitled to terminal benefits, including salary arrears, gratuity, and certificates of service.
- 3 Whether the Respondent complied with statutory requirements for fair termination.
Ratio Decidendi
The court found that the Claimants were employed by the Respondent and that their termination was effected verbally without any hearing or valid reason. The Respondent failed to provide any evidence or justification for the terminations and did not comply with statutory requirements under the Employment Act, specifically Sections 41, 35, 43, and 45. The law mandates that employees must be given reasons for termination and an opportunity to be heard. The Respondent's failure to follow due process rendered the termination unfair and unlawful. The court therefore awarded the Claimants their respective terminal dues, including salary arrears, gratuity, notice pay, and ordered the issuance of...
Court Disposition
Claim allowed in full for all Claimants.
Orders
- Respondent to pay each Claimant their respective terminal dues as specified in the judgment.
- Respondent to issue certificates of service to each Claimant.
Full Case Text
Judgment text and source record
112 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT ATNAIROBI
Cause No. 1241 Of 2011
(Before Hon. Justice Hellen S. Wasilwa On 13th July, 2015)
SOPHIA KERRE ……………..………..….....….……1ST CLAIMANT
MARION KARUIRU………………….…........…….2ND CLAIMANT
JANE MULEKYE USWII …………….......…………3RD CLAIMANT
ANNE JEPKORIOR KOTUT ………….....…..….….4TH CLAIMANT
EUDIAH CHERUIYOT ………………..….…....……5TH CLAIMANT
MARTIN OGOLLA ADADA……….….…...………6TH CLAIMANT
ZACHARY KIRORI …………………….....…………7TH CLAIMANT
MOSES OTIENO ODONGO ………….....………….8TH CLAIMANT
EVERLYNE AKOTH ………………….…....……….9TH CLAIMANT
EVERLYNE ATIENO ODENY …….……....………10TH CLAIMANT
OSCAR IVALI ……………………………………11TH CLAIMANT
VERSUS
AUGUSTANA COLLEGE LIMITED ………………RESPONDENT
JUDGMENT OF THE COURT
The Claimants herein filed their Memorandum of Claim on 25/7/2011 through the firm of K. A. Nyachoti & Company Advocates. The issue in dispute is termination of the Claimants’ services and failure to pay their terminal benefits.
It is the Claimants’ case that they all worked for the Respondent in different capacities and having been employed at different times as per their letter of contract as follows:
1st Claimant – Sophia Kerre – employed on 3/1/1996 as a Secretary earning a salary of 46,800/= gross as at February 2012.
2nd Claimant – Marion Karuiru - employed on 28/2/2010 earning a salary of 39,000/= gross.
3rd Claimant – Jane Mulekye Uswii – employed on 27/1/2000 as a Secretary and last pay being 33,000/= gross on 31/11/2009.
4th Claimant – Anne Jepkorior Kotut earning 43,230 as at 31/3/2010.
5th Claimant – Eudiah Cheruiyot – employed on 8/5/2000 as a Service Library Assistant and earning 34,900/= as at 31/01/2010.
6th Claimant – Martin Ogolla Adada – employed on 1/9/2005 as a Lecturer in Information Technology and earning Ksdhs.55,100/= gross as at 31/3/2010.
7th Claimant – Zachary Kirori earning 98,300/= gross as at 31/02/2010.
8th Claimant – Moses Otieno Odongo – employed on 14/10/2009 as a Lecturer in Business and related units and earning Kshs.45,000/ gross as at 28/2/2010.
9th Claimant – Everlyne Akoth– employed on 1/3/2007 as a Library Assistant and earning 17,600/= gross as at 31/3/2010.
10th Claimant – Everlyne Atieno Odeny – employed on 7/10/2004 as a Security Guard and earning Kshs,12,100 gross as at 28/2/2010.
11th Claimant – Oscar Ivali – employed on 1/3/2004 as a Security Guard and earning Kshs.9,100/= gross as at 28/2/2010.
The Claimants exhibited either their letters of employment their pay slips or both as evidence before this court.
It is the Claimants case that in April 2010, the Respondent terminated their services without paying each of them their lawful terminal benefits and without any justifiable reason. The termination was verbal and the Grievant aver that they were not given a chance to be heard on their case contrary to the principles of natural justice, equity and fair play.
The Claimants therefore seek a declaration that their termination was unlawful and null and void and therefore seek payment of their terminal dues as enumerated in their claim all totaling 1,891,977/= plus interest and costs. They also seek to be issued with Certificates of Service.
The Respondents though served never filed any defence. The Respondents appeared in court severally and had an opportunity to put in their documents but never sought to do the same. They were even given an opportunity to file their submissions and this they also didn’t do.
From the documents on record, the Claimants were properly employed by the Respondents and they exhibited their respective employment contracts/pay slips to attest to this. The manner of their termination is explained to be verbal. There was no evidence to counter their evidence.
They were not given any hearing before the verbal termination and neither were they given reasons for the same. This is contrary to the law as espoused under Section 41 of Employment Act 2007 and Section 35, Section 43 and Section 45(1) and (2) of the Employment Act. The law requires that before termination, proper reasons must be given to the employee and then a hearing.
The Respondent having failed to adhere to the law, I find the termination unfair as provided for under Section 45(1) and (2) of Employment Act which states as follows:
“No employer shall terminate the employment of an employee unfairly.
A termination of employment by an employer is unfair if the employer fails to prove:
that the reason for the termination is valid;
that the reason for the termination is a fair reason:-
related to the employee’s conduct, capacity or compatibility; or
based on the operational requirements of the employer; and
that the employment was terminated in accordancewith fair procedure.”
I therefore find for the Claimants as prayed and award them as follows:
1st Claimant – Sophia Kerre
One month salary in lieu of notice 38,367/=
Salary arrears 52,013/=
Gratuity 327,600/=
Sub total 417,980/=
2nd Claimant – Marion Karuiru
One month salary in lieu of notice 33,047/=
Salary arrears 42,920/=
Unremitted deducted bank loan 21,484/=
Gratuity 78,000/=
Sub total 175,451/=
3rd Claimant – Jane Mulekye Uswii
One month salary in lieu of notice 28,403/=
Salary arrears 37,612/=
Gratuity 148,500/=
Sub total 214,515/=
4th Claimant – Anne Jepkorior Kotut
One month salary in lieu of notice 26,153/=
Salary arrears 31,016/=
Gratuity 15,000/=
Sub total 72,169/=
5th Claimant – Eudiah Cheruiyot
One month salary in lieu of notice 29,828/=
Salary arrears 32,451/=
Gratuity 139,600/=
Sub total 201,879/=
6th Claimant – Martin Ogolla Adada
One month salary in lieu of notice 44,177/=
Salary arrears 31,992/=
Unremitted deducted bank loan 67,539/=
Gratuity 110,200/=
Sub total 253,908/=
7th Claimant – Zachary Kirori
One month salary in lieu of notice 43,127/=
Salary arrears 86,590/=
Unremitted deducted bank loan 16,068/=
Unremitted deducted HELB loan 30,880/=
Gratuity 133,250/=
Sub total 309,915/=
8th Claimant – Moses Otieno Odongo
One month salary in lieu of notice 37,107/=
Gratuity 50,214/=
Sub total 87,321/=
9th Claimant – Everlyne Akoth
One month salary in lieu of notice 16,141/=
Salary arrears 17,923/=
Gratuity 26,400/=
Sub total 60,464/=
10th Claimant – Everlyne Atieno Odeny
One month salary in lieu of notice 11,525/=
Salary arrears 12,200/=
Gratuity 30,250/=
Sub total 53,975/=
11th Claimant – Oscar Ivali
One month salary in lieu of notice 8,700/=
Salary arrears 8,400/=
Gratuity 27,300/=
Sub total 44,400/=
Each Claimant shall be issued with a Certificate of Service.
The Respondent will also pay costs of this suit.
Read in open Court this 13th day of July, 2015
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Nyachoti for Claimant
No appearance for Respondent