[2014] KEELRC 540 (KLR)
The court determined that the claimant's termination occurred in August 2007, prior to the commencement of the Employment Act 2007. Therefore, the remedies and procedures under the Employment Act 2007 were not available to the claimant. The proper legal framework was the Employment Act Cap 226 and the Trade Disputes...
Source-derived case information.
- Citation
- [2014] KEELRC 540 (KLR)
- Parties
- Claimant: William Kipchirchir Kipsat; Respondent: Telkom Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 417 of 2010
- Procedural Posture
- Employment Cause / Final Award
- Outcome
- claim_rejected
- Legal Topics
- Unfair Termination, Unlawful Dismissal, Employment Act Application, Trade Disputes Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Kipchirchir Kipsat
Claimant
Telkom Kenya Limited
Respondent
Procedural Posture
Employment Cause / Final Award
Legal Issues
- 1 Whether the claimant's termination was unfair and unlawful under the applicable law.
- 2 Whether the Employment Act 2007 applies to a termination that occurred in August 2007.
- 3 Whether the claimant followed the correct legal procedure in approaching the Industrial Court.
Ratio Decidendi
The court determined that the claimant's termination occurred in August 2007, prior to the commencement of the Employment Act 2007. Therefore, the remedies and procedures under the Employment Act 2007 were not available to the claimant. The proper legal framework was the Employment Act Cap 226 and the Trade Disputes Act Cap 234, which the claimant did not invoke. As a result, the claim was improperly before the court and could not be entertained under the pleaded law.
Court Disposition
claim_rejected
Orders
- The claim is improperly before the court and is hereby rejected with no order on the costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 417 OF 2010
BETWEEN
WILLIAM KIPCHIRCHIR KIPSAT ………………….........……………………………………. CLAIMANT
VERSUS
TELKOM KENYA LIMITED ………………………………………………………………. RESPONDENT
Rika J
CC. Kidemi.
Mr. Misati instructed by Biwott Korir & Company Advocates for the Claimant
Mr. Melley instructed by Iseme, Kamau & Maema Advocates for the Respondent
__________________________________________________________________
ISSUE IN DISPUTE: UNFAIR AND ULAWFUL TERMINATION
AWARD
1. The Claimant initiated the Claim herein against his former Employer Telkom Kenya Limited, in a Statement of Claim filed on 21st April 2010. He filed a List of Documents on 3rd July 2012. The Respondent filed its Statement of Response on 10th June 2010, a Supplementary Statement of Response on 2nd March 2011, and a Supplementary List of Documents on 22nd February 2012. The Claimant was heard on 19th October 2012 and 18th March 2013 when his case closed. The Respondent’s Witness Boniface Muendo gave evidence on 29th May 2013, while the last Witness for the Respondent Stella Ndirangu gave evidence on 24th September 2013 when the hearing closed. The dispute was last mentioned on 24th September 2013, when Parties confirmed the filing of the Closing Submissions and were advised by the Court Award would be delivered on notice.
2. Upon consideration of the pleadings, evidence and submissions on record, the Court Finds-:
The Claimant was employed by the Respondent as a Technical Assistant on 11th August 1992.
He was dismissed on 30th August 2007, on the allegation that he was involved in theft of Respondent’s generators, two pumps and assorted engineering tools
At the time of dismissal, the substantive Employment Law was the Employment Act Cap 226; the Regulation of Wages and Conditions of Employment Act Cap 229; and Section 15 of the Trade Disputes Act Cap 234 the Laws of Kenya.
The Claimant seems to invoke the Employment Act 2007 under paragraphs 9 and 15 of the Statement of Claim. His prayers for reinstatement and maximum compensation the equivalent of 12 months’ salary are remedies not available under the old Employment Act, which reinforces the position that the Claim is based on the Employment Act 2007.
This Act came into operation on 2nd June 2008, and would not be available in redressing a termination dispute which arose in August 2007.
The correct procedure in approaching the Industrial Court would have been under the Trade Disputes Act which was in force in August 2007, and the substantive law would be the Employment Act Cap 226; the Regulation of Wages and Conditions of Employment Act Cap 229; and Section 15 of the Trade Disputes Act, Cap 234- the Laws of Kenya.
The Claimant has therefore not followed the correct path in coming to Court, and the substantive law pleaded, has no application to the dispute. The Court is unable to assist him.
IT IS ORDERED-:
The Claim is improperly before the Court and is hereby rejected with no order on the costs.
Dated and delivered at Nairobi this 4th day of April 2014
James Rika
Judge