[2017] KEELRC 799 (KLR)
The court found that the claimant's employment was terminated without valid reason and without adherence to fair procedure as required by the Employment Act. The respondent failed to enter appearance or defend the claim, and the claimant's evidence was uncontroverted. The court held that the claimant was entitled to...
Source-derived case information.
- Citation
- [2017] KEELRC 799 (KLR)
- Parties
- Claimant: Timothy Musinzi Arula; Respondent: Francis Gichanka T/A Showcase Properties Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 498 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in full. Judgment entered for the claimant.
- Judges
- NJ Abuodha
- Legal Topics
- Unfair Termination, Terminal Benefits, Notice Pay, Service Pay, Annual Leave, Compensation for Unlawful Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Musinzi Arula
Claimant
Francis Gichanka T/A Showcase Properties Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was unlawfully and unfairly terminated.
- 2 Whether the claimant is entitled to compensation for unfair termination.
- 3 Whether the claimant is entitled to terminal benefits including notice pay, service pay, and payment in lieu of untaken annual leave.
Ratio Decidendi
The court found that the claimant's employment was terminated without valid reason and without adherence to fair procedure as required by the Employment Act. The respondent failed to enter appearance or defend the claim, and the claimant's evidence was uncontroverted. The court held that the claimant was entitled to compensation for unfair termination equivalent to twelve months' salary, as well as terminal benefits including notice pay, service pay, and payment in lieu of untaken annual leave. The total award was Kshs. 307,840, with interest on terminal benefits from the date of filing suit and on compensation from the date of judgment. Costs were awarded to the claimant.
Court Disposition
Claim allowed in full. Judgment entered for the claimant.
Orders
- The respondent shall pay the claimant Kshs. 307,840 as compensation and terminal benefits.
- Terminal benefits to accrue interest at court rates from the date of filing suit until payment in full.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 498 OF 2013
TIMOTHY MUSINZI ARULA …….…….…………… CLAIMANT
VERSUS
FRANCIS GICHANKA
T/A SHOWCASE PROPERTIES LIMITED …...... RESPONDENT
Mr. Okemo for claimant
JUDGMENT
1. By a memorandum of claim dated 3rd April 2013, the claimant seeks maximum compensation equivalent to twelve (12) months gross salary for unlawful and unfair termination of employment and payment of terminal benefits to wit;
a) One month’s salary in lieu of notice in the sum of Kshs.20,800;
b) Service pay calculated at fifteen (15) days salary for each of the 6. 5 years completed service; and
c) Payment in lieu of untaken annual leave for the 6. 5 years of service.
2. The facts of the case are that the claimant was employed as a crane operator by the respondent on or about May 2006 at a weekly wage of Kshs.4,800 which translated to a monthly salary of Kshs.20,800. The claimant served the respondent diligently in that capacity until on 14th November when the respondent wrongfully and unfairly terminated the employment of the claimant.
3. The claimant testified under oath in support of his claim and adopted the memorandum of claim and the verifying affidavit sworn on 3rd April 2013.
4. The claimant relied further on annexures to the statement of claim.
5. The claimant states that he was not given annual leave for the 61/2 years he served and was not paid in lieu thereof.
6. That he was not given notice or any reason for termination and was not paid in lieu thereof.
7. The memorandum of claim was served on the respondent by Mr. Charles Mutua Mwanzi, an authorized process server on 21st May 2013 and he did not enter appearance nor file a statement of defence.
8. The claim remains undefended therefore.
9. The claimant has proved on a balance of probability that his employment was terminated for no valid reason and without following a fair procedure contrary to sections 41, 43 and 45 of the Employment Act and the claimant is entitled to payment of the terminal benefits set out in the memorandum of claim in the sum of Kshs.124,800.
10. The total award to the claimant as against the respondent is Kshs. 307,840.
11. The award of terminal benefits is payable with interest at court rates from date of filing suit till payment in full whereas the award of compensation is payable with interest at court rates from date of Judgment.
12. Costs to follow the outcome.
Dated and Signed at Nairobi this 18th day of August, 2017.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE
Dated, Delivered and Signed at Nairobi this 18th day of August, 2017.
JORAM NELSON ABUODHA
JUDGE
Delivered in the presence of:
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