[2019] KEELRC 1736 (KLR)
The court found that the Claimant had, in fact, resigned from his employment and thus abandoned claims for compensation and notice pay. The only surviving claims were for leave pay, service pay, and public holidays. The Respondent failed to produce records of the Claimant's leave, as required by law, and did not...
Source-derived case information.
- Citation
- [2019] KEELRC 1736 (KLR)
- Parties
- Claimant: Stanley S. Mwasaghu; Respondent: Delfy Security Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 688 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant in part
- Judges
- L Ndolo
- Legal Topics
- Unlawful Termination, Leave Entitlement, Service Pay, Public Holidays, Employment Records
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley S. Mwasaghu
Claimant
Delfy Security Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unlawful and unfair.
- 2 Whether the Claimant is entitled to leave pay, service pay, and payment for public holidays.
- 3 Whether the Respondent maintained proper employment records as required by law.
Ratio Decidendi
The court found that the Claimant had, in fact, resigned from his employment and thus abandoned claims for compensation and notice pay. The only surviving claims were for leave pay, service pay, and public holidays. The Respondent failed to produce records of the Claimant's leave, as required by law, and did not prove that the Claimant was a contributing member of the National Social Security Fund. Consequently, the claims for leave pay and service pay succeeded. The claim for public holidays was dismissed for lack of proof. Judgment was entered for the Claimant for leave pay for five years, prorata leave for ten months, and service pay for five years, totaling Kshs. 98,750, plus interest...
Court Disposition
judgment for the claimant in part
Orders
- The Respondent shall pay the Claimant Kshs. 98,750 as leave pay and service pay.
- The amount shall attract interest at court rates from the date of judgment until payment in full.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 688 OF 2017
STANLEY S. MWASAGHU.................................CLAIMANT
VERSUS
DELFY SECURITY LIMITED......................RESPONDENT
JUDGMENT
INTRODUCTION
1. This is an employment dispute between Stanley S. Mwasaghu and Delfy Security Limited. The Claimant’s case is documented by a Memorandum of Claim dated 24th August 2017 and filed in court on even date.
2. The Respondent filed a Response on 15th November 2017 but did not call any witness. The Claimant testified on his own behalf.
The Claimant’s Case
3. The Claimant states that he was employed by the Respondent on 3rd February 2011 in the position of Assistant Operations In-Charge. He earned a monthly salary of Kshs. 15,000.
4. On 13th December 2016, the Claimant was issued with a termination notice running until 31st December 2016. The Claimant states that the termination of his employment was unlawful and unfair in that there was no valid reason for it and he was not afforded an opportunity to defend himself.
5. The Claimant’s claim against the Respondent is as follows:
a) One month’s salary in lieu of notice……………………………Kshs. 15,000
b) Leave pay for 6 years…………………………………………………………..72,692
c) Service pay @ 15 days’ pay per year……………………………………51,923
d) 12 months’ salary in compensation…………………………………..180,000
e) Public holidays……………………………………………………………………27,692
f) Certificate of service
g) Costs plus interest
The Respondent’s Case
6. In its Response dated 14th November 2017 and filed in court on 15th November 2017, the Respondent admits having employed the Claimant at an initial basic salary of Kshs. 12,000.
7. The Respondent however denies the Claimant’s claim for unlawful and unfair termination of employment. The Respondent avers that it is the Claimant who deserted his duties and thus abandoned employment on his own volition.
Findings and Determination
8. In his Memorandum of Claim and in his written witness statement, the Claimant makes a claim for unlawful termination of employment. However, in his testimony before the Court, the Claimant told the Court that he himself gave a resignation notice on 1st December 2016. He therefore abandoned the claims for compensation and notice pay.
9. The only surviving claims are therefore for leave pay, service pay and public holidays. On the claim for leave pay, I have this to say; under Sections 10 and 74 of the Employment Act, the Respondent was under an obligation to maintain records of the Claimant’s leave entitlement and utilisation. In the absence of any such records, the claim for leave pay succeeds and is allowed. Similarly, in the absence of any evidence that the Claimant was a contributing member of the National Social Security Fund (NSSF), the claim for service pay succeeds.
10. The claim for public holidays was not proved and is dismissed.
11. I therefore enter judgment in favour of the Claimant as follows:
a) Leave pay for 5 years (15,000/30x21x5)…………………………….Kshs. 52,500
b) Prorata leave for 10 months (15,000/30x1. 75x10)……………………….8,750
c) Service pay for 5 complete years (15,000/30x15x5)……………………37,500
Total……………………………………………………………………………………..…98,750
12. This amount will attract interest at court rates from the date of judgment until payment in full.
13. The Claimant is also entitled to a certificate of service plus costs of the case.
14. Orders accordingly.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 25TH DAY OF APRIL 2019
LINNET NDOLO
JUDGE
Appearance:
Mr. Ngonze for the Claimant
No appearance for the Respondent