[2013] KEELRC 954 (KLR)
The court found that the claimant was given notice and an opportunity to be heard regarding the events of 10.10.2012. The evidence showed the claimant refused to comply with reasonable instructions and threatened the respondent’s manager. The court accepted the respondent’s account and held that the claimant failed...
Source-derived case information.
- Citation
- [2013] KEELRC 954 (KLR)
- Parties
- Claimant: Walter Nyawara Wauna; Respondent: Taidy’s Restaurant
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 196 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed with costs
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Summary Dismissal, Employee Discipline, Notice Pay, Annual Leave, House Allowance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Walter Nyawara Wauna
Claimant
Taidy’s Restaurant
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment.
- 2 Whether the claimant is entitled to terminal dues including notice pay, leave, underpayments, and house allowance.
- 3 Whether the respondent followed due process in dismissing the claimant.
Ratio Decidendi
The court found that the claimant was given notice and an opportunity to be heard regarding the events of 10.10.2012. The evidence showed the claimant refused to comply with reasonable instructions and threatened the respondent’s manager. The court accepted the respondent’s account and held that the claimant failed to prove unfair termination or entitlement to any of the terminal dues claimed. Consequently, the entire claim was dismissed with costs to the respondent.
Court Disposition
claim dismissed with costs
Orders
- The memorandum of claim is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 196 OF 2013
WALTER NYAWARA WAUNA...................................CLAIMANT
-VERSUS-
TAIDY’S RESTAURANT...........................................RESPONDENT
(BEFORE HON. JUSTICE BYRAM ONGAYA ON FRIDAY 20TH DECEMBER, 2013)
JUDGMENT
The Claimant is Walter Nyawara Wauna and the respondent is Taidy’s Restaurant. The claimant filed the memorandum of claim on 26. 06. 2013 and prayed for:
payment of 14 days wages during the period of suspension;
48 days annual leave;
9 months pro-rata leave at 2 days per month
2 months wages for notice pay;
underpayments;
house allowance;
6 months pay for unfair termination;
costs of the suit; and
any other remedy the court may deem fit.
The claimant appointed Geoffrey Otieno & Company Advocates to act for him in the suit.
The respondent filed the memorandum of defence on 17. 07. 2013 through R.W. Chege & Associates and prayed that the claimant’s claim be dismissed with costs.
The case was heard on 6. 11. 2013. The claimant gave evidence to support his case and the respondent’s manager at the Eldama Ravine branch Josiah Chemammet (RW) gave evidence to support the respondent’s case.
The claimant testified that he was employed by the respondent as a waiter with effect from 1. 11. 2006 at Kshs.5,000. 00 per month. He testified that on 12. 11. 2009, he was suspended for 14 days without pay on allegations that he had adulterated a customer’s drink. The claimant gave a written statement to exculpate himself from the allegations.
On 10. 10. 2012, the claimant recalled that a customer held a glass of wine and poured the wine on the barman’s face. The wine wetted the customers within the vicinity. The following morning, the claimant was required to make a written statement to explain the events of 10. 10. 2013. The scuffle had involved the barman and so the claimant declined to record the statement as demanded. Later, the claimant received a dismissal letter. The latter stated that the claimant had sold a customer “bad wine” in collaboration with the bar man. He was not paid any terminal dues. Intervention by the claimant’s trade union and the Labour Officer did not yield an amicable resolution because the respondent failed to cooperate.
RW testified that on 11. 10. 2012, the claimant went to RW’s office under the influence of alcohol as he was drank. The claimant refused to discuss or write a statement about the events of 10. 10. 2012. Instead, the claimant threatened to kill RW while pointing a finger at RW. The dismissal letter was then issued.
The court has evaluated the evidence as presented. The claimant by his evidence stated that he refused to record the statement to explain the events of 10. 10. 2012. There is no doubt that the claimant was accorded notice and a hearing in view of the events of 10. 10. 2012. There is no reason to doubt the account as stated in the evidence of RW.
The court finds that the claimant has failed to establish a case of unfair termination and all the other claims in the memorandum of claim were not established.
In conclusion, judgment is entered for the respondent against the claimant as the memorandum of claim is dismissed with costs.
Signed, datedanddeliveredin court atNakuruthisFriday, 20th December, 2013.
BYRAM ONGAYA
JUDGE