[2017] KEELRC 197 (KLR)
The court found that the respondent failed to establish a valid reason for the claimant's summary dismissal and did not follow the mandatory procedural requirements under the Employment Act, 2007. The claimant was not given an opportunity to defend himself, and the allegations against him were unsupported by...
Source-derived case information.
- Citation
- [2017] KEELRC 197 (KLR)
- Parties
- Claimant: Vincent Onteri Ombaba; Respondent: Sana Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 75 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant; summary dismissal declared unfair and unlawful; monetary award granted.
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Summary Dismissal, Disciplinary Process, Trade Union Membership, Compensation for Termination
- 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
Vincent Onteri Ombaba
Claimant
Sana Industries Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's summary dismissal was unfair, wrongful, and unlawful.
- 2 Whether the claimant is entitled to terminal dues and compensatory damages as pleaded.
Ratio Decidendi
The court found that the respondent failed to establish a valid reason for the claimant's summary dismissal and did not follow the mandatory procedural requirements under the Employment Act, 2007. The claimant was not given an opportunity to defend himself, and the allegations against him were unsupported by evidence or witnesses. The court held that the dismissal was unfair, wrongful, and unlawful. The claimant was entitled to compensation for unfair termination, one month’s salary in lieu of notice, and payment for accrued leave, but not gratuity due to NSSF membership. The total award was Kshs. 174,138.21, with interest and costs to be paid by the respondent.
Court Disposition
Judgment for the claimant; summary dismissal declared unfair and unlawful; monetary award granted.
Orders
- Declaration that the claimant’s dismissal was wrong, unfair and unlawful.
- Respondent to pay the claimant Kshs. 174,138.21 by 15.01.2018, failing which interest at court rates from the date of judgment until full payment.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO. 75 OF 2017
VINCENT ONTERI OMBABA...........................CLAIMANT
VERSUS
SANA INDUSTRIES LIMITED....................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday, 8th December, 2017)
JUDGMENT
The claimant filed the memorandum of claim on 14. 03. 2017 through Mwaura Kamau & Company Advocates. The claimant prayed for judgment against the respondent for:
a) A declaration that the claimant’s dismissal from his employment was wrong, unfair and unlawful.
b) A declaration that the claimant is entitled to payment of his terminal dues and compensatory damages as pleaded being Kshs.208, 602. 93 and the respondent to pay the claimant accordingly.
c) Interest from the date of filing the suit till payment thereof.
d) Costs of the suit plus interest thereon.
The respondent, despite service, failed to enter appearance, to file a response or to attend the mentions or hearings.
The claimant testified to support his case.
The claimant testified that the respondent employed him from 2009 to 2015. The claimant worked at the respondent’s packaging department at Kshs. 310. 00 per day and at termination at Kshs. 530. 00 per day.
The claimant testified that he was a member of the Kenya union of Hair and Beauty and in 2013 he was one of the persons promoting the registration of that union. The union was subsequently registered, recognised by the respondent, and the respondent’s employees elected shop stewards. The claimant was one of them.
On 22. 07. 2015, as the claimant reported at work, he encountered co-workers at the respondent’s gate and who were restraining the other workers from entering the respondent’s premises to work. Subsequently, the claimant testified that the respondent’s management took the view that the union had failed to protect the respondent’s interests. At the same time, the workers alleged that the shop stewards had been bribed by the respondent’s management not to protect the workers’ interests. The management held a meeting and the shop stewards explained the workers’ grievances. The respondent’s human resources manager then alleged that the claimant had hit him with a stone on the date of the strike, 22. 07. 2015. The claimant testified that the allegation was untrue. On that account, the claimant was suspended and then invited for a disciplinary hearing on 30. 07. 2017 but the human resources manager was absent. The claimant was directed to go away until he was summoned to collect a letter for summary dismissal.
The letter of summary dismissal was dated 05. 08. 2015 and the claimant was dismissed upon allegations of assaulting a manager by the name Mr. Jeon when the claimant was allegedly blocking fellow employees from entering the factory. The claimant appealed against the dismissal by his letter dated 11. 08. 2015 on the grounds that he had not been given an opportunity to defend himself, that he had a clean record of service, and there had been no witnesses - clearly indicating that the case of summary dismissal lacked basis. The claimant received no reply. He filed the present suit.
To answer the 1st issue for determination the court returns that the summary dismissal amounted to unfair termination because the respondent failed to establish the alleged reason for termination as envisaged in section 43 and 47 (5) of the Employment Act, 2007.
To answer the 2nd issue for determination, the court makes the following findings on the remedies as prayed for:
a) The claimant is entitled to a declaration that the claimant’s dismissal from his employment was wrong, unfair and unlawful.
b) The claimant is entitled to Kshs.11, 488. 00 being one month pay in lieu of termination notice.
c) The court has considered the long service of over 6 years, the otherwise clean record of service and that the claimant did not contribute to his termination. He is awarded 12 months’ compensation under section 49(1) (c) of the Employment Act, 2007 at Kshs. 11, 488. 00 per month making Kshs. 137, 856. 00as prayed for.
d) Since the claimant was a member of NSSF, gratuity as prayed for is declined in view of section 35(6) of the Act.
e) The claimant is awarded pro rata leave for one month making Kshs. 670. 13 as prayed for and a further Kshs. 24, 124. 08 being pay in lieu of annual leave as prayed for.
In conclusion judgment is entered for the claimant against the respondent for:
1) The declaration that the claimant’s dismissal from the employment was wrong, unfair and unlawful.
2) The respondent to pay the claimant Kshs.174, 138. 21 by 15. 01. 2018 failing interest at court rates and from the date of this judgment to be payable thereon till full payment.
3) The respondent to pay the claimant’s costs of the suit.
Signed, datedanddeliveredin court atNyerithisFriday, 8th December, 2017.
BYRAM ONGAYA
JUDGE