[2018] KEELRC 774 (KLR)
The court found that the respondent deserted duty without giving the required notice, entitling the claimant to pay in lieu of notice as per the varied contract terms. The respondent was also bonded to the claimant for training costs, having agreed to reimburse the full amount if he left before 60 months...
Source-derived case information.
- Citation
- [2018] KEELRC 774 (KLR)
- Parties
- Claimant: Steel Structures Limited; Respondent: Henry King’ara Ndung’u
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1881 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- B Ongaya
- Legal Topics
- Termination Without Notice, Training Bond Enforcement, Recovery of Company Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Steel Structures Limited
Claimant
Henry King’ara Ndung’u
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent is liable to pay in lieu of notice for desertion of duty.
- 2 Whether the respondent is liable to reimburse the claimant for training costs under a bonding agreement.
- 3 Whether the respondent should return company property in his possession.
Ratio Decidendi
The court found that the respondent deserted duty without giving the required notice, entitling the claimant to pay in lieu of notice as per the varied contract terms. The respondent was also bonded to the claimant for training costs, having agreed to reimburse the full amount if he left before 60 months post-training, which he did. The court found no evidence to support a higher training cost claim for 2008. The respondent was also found to be in possession of company property (a calculator) and was ordered to return it. The prayer for an injunction was abandoned. As the respondent failed to appear or defend the suit, the claimant's evidence was uncontroverted and judgment was entered...
Court Disposition
judgment for the claimant
Orders
- The respondent to pay the claimant Kshs.237,500.00 by 15.12.2018, failing which interest at court rates to apply from the date of filing until full payment.
- The respondent to return to the claimant Casio Calculator Fx Asset No. 408877.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO.1881OF 2011
STEEL STRUCTURES LIMITED ................................. CLAIMANT
- VERSUS -
HENRY KING’ARA NDUNG’U ............................... RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 2nd November, 2018)
JUDGMENT
The claimant filed the memorandum of claim on 10. 11. 2011 through Kelvin Mogeni Advocates. The claimant prayed for judgment against the respondent for:
a) An injunction to restrain the claimant from joining any employer who is in similar business or deals with all of the products that the claimant manufactures or trades; and entering into any business which is in direct competition with the claimant, being for a period of one year from 12. 09. 2011.
b) Kshs.87, 500. 00 being pay in lieu of notice.
c) Kshs. 450, 000. 00 being sum paid for the respondent’s training.
d) Costs and interest.
e) Any order directing the respondent to return the entire respondent’s property in his possession.
Despite service the respondent failed to enter appearance, to file a defence, and to attend at the hearing.
The issue for determination is whether the claimant is entitled to the remedies prayed for. The Court makes findings as follows:
a) The evidence is that the respondent employed the claimant by the letter of appointment dated 20. 07. 2006 effective 01. 08. 2006. The termination clause provided that either party could terminate by giving a two months’ written notice or 2 months’ pay in lieu of such notice. The term was varied by the respondent’s letter of 23. 09. 2010 to one month notice or one month pay in lieu of notice for all senior management staff. The respondent deserted duty on 12. 09. 2011 without notice and the claimant by letter dated 26. 09. 2011 demanded payment of Kshs. 87, 500. 00 in lieu of notice. The Court returns that the claimant has established that claim and is awarded accordingly.
b) The claimant paid the respondent’s fees for Strucad training and by the letter dated 08. 05. 2009 the respondent was bonded that if he terminated employment before completion of 60 months immediately after the training, the respondent would reimburse the claimant the full training costs and any perils. When the respondent left employment on 12. 09. 2011, he breached the bond. The evidence is that the cost of training was Kshs. 150, 000. 00 and the claimant is awarded accordingly. There was no evidence for training cost of Kshs. 300,000. 00 in 2008 as submitted for the claimant and the claim will be declined. It is also not clear how the bonding agreement or policy came to apply to the alleged training in 2008.
c) The prayer for injunction was abandoned.
d) The respondent signed on 01. 09. 2006 acknowledging to be in possession of the claimant’s Casio Calculator Fx Asset No. 408877 and the same will be returned.
In conclusion judgment is hereby entered for the claimant against the respondent for:
a) The respondent to pay the claimant a sum of Kshs.237, 500. 00 by 15. 12. 2018 failing interest at Court rates to be payable thereon from the date of the filing of the suit till full payment.
b) The respondent to return to the claimant Casio Calculator Fx Asset No. 408877.
c) The respondent to pay costs of the suit.
Signed, datedanddeliveredin court atNairobithisFriday 2nd November, 2018.
BYRAM ONGAYA
JUDGE