[2018] KEELRC 397 (KLR)
The court found that, except for notice pay and prorated leave which were admitted by the Respondent, the Claimant failed to specifically prove his claims for underpayment, compensation for work on rest days and public holidays, and tools allowance. The court held that special damages must be strictly proved, and...
Source-derived case information.
- Citation
- [2018] KEELRC 397 (KLR)
- Parties
- Claimant: Julius Nyamai Mulatia; Respondent: Twiga Construction Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 596 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant in part
- Judges
- L Ndolo, DO Ogal
- Legal Topics
- Unfair Termination, Underpayment of Wages, Leave Entitlements, Notice Pay, Tools Allowance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Nyamai Mulatia
Claimant
Twiga Construction Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Claimant was unfairly terminated from employment.
- 2 Whether the Claimant was underpaid during his employment.
- 3 Whether the Claimant is entitled to compensation for working on rest days and public holidays.
Ratio Decidendi
The court found that, except for notice pay and prorated leave which were admitted by the Respondent, the Claimant failed to specifically prove his claims for underpayment, compensation for work on rest days and public holidays, and tools allowance. The court held that special damages must be strictly proved, and the Claimant's unsupported assertions were insufficient. Consequently, only the admitted claims for notice pay and prorated leave were awarded. Each party was ordered to bear its own costs, and the awarded sum would attract interest at court rates from the date of filing until payment in full.
Court Disposition
judgment for the claimant in part
Orders
- The Respondent shall pay the Claimant Kshs. 19,800 as notice pay and prorated leave.
- The awarded sum shall attract interest at court rates from the date of filing suit until payment in full.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 596 OF 2013
JULIUS NYAMAI MULATIA.................................................CLAIMANT
VS
TWIGA CONSTRUCTION LIMITED............................RESPONDENT
JUDGMENT
Introduction
1. This claim is brought by Julius NyamaiMulatia against his former employer, Twiga Construction Limited. The claim is documented by a Memorandum of Claim dated 29th April 2013 and filed in court on even date.
2. The Respondent filed a Defence on 28th June 2013 but did not attend the trial in spite of due notice. The Court therefore heard the Claimant exparte.
The Claimant’s Case
3. The Claimant states that he was employed by the Respondent on 1st December 2010 as an ungraded artisan (mason). He earned a daily rate of Kshs. 450 which was paid weekly.
4. The Claimant claims that his employment was unfairly terminated on 30th July 2011. He adds that he was underpaid by Kshs.42. 40 per dayand that he worked during rest days and on public holidays, without compensation. Further, he was not paid monthly tools allowance.
5. The Claimant’s claim is as follows:
a) One month’s salary in lieu of notice……………………….Kshs. 14,772. 00
b) Prorata leave for 8 months……………………………………....…8,863. 20
c) Underpayment……………………………………………………..3,307. 20
d) 9 public holidays @ Kshs. 492. 20……………………………...….4,431. 60
e) 37 weekly rest days @ Kshs. 492. 20…………………………......18,218. 80
f) Tools allowance @ Kshs. 125 per month…………………….........1,000. 00
g) Costs plus interest
The Respondent’s Case
6. In itsDefence dated 28th June 2013 and filed in court on even date, the Respondent states that the Claimant was employed on 20th December 2010 and not 1st December 2010 as pleaded.
7. The Respondent denies underpaying the Claimant and adds that he was given one rest day per week and did not work on public holidays.
8. The Respondent admits owing the Claimant one month’s pay in lieu of notice as well as 15 days in leave pay.
Findings and Determination
9. Apart from the claims for notice and leave pay which are admitted by the Respondent in its Defence, the Claimant claims underpayment and compensation for working on public holidays and weekly rest days. He also claims tools allowance at Kshs. 125 per month.
10. All these claims are in the nature of special damages which must be specifically proved. Apart from his word, the Claimant did not provide any evidence to support any of these claims which therefore fail and are dismissed.
11. The claims for notice and leave pay are however admitted and are payable.
12. I therefore enter judgment in favour of the Claimant as follows:
a) One month’s salary in notice pay............................................Kshs. 13,500
b) Prorata leave for 8 months (13,500/30x1. 75x8).................................6,300
Total………………………………………………………………..19,800
13. This amount will attract interest at court rates from the date of filing suit until payment in full.
14. Each party will bear their own costs.
15. Orders accordingly.
DATED AND SIGNED AT MOMBASA THIS 17TH DAY OF DECEMBER 2018
LINNET NDOLO
JUDGE
DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2018
MAUREEN ONYANGO
JUDGE
Appearance:
Mr. Okemwafor the Claimant
No appearance for the Respondent