Benard Ngungu Mutua v General Aluminium Fabricators [2014] KEELRC 273 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

CAUSE NO. 1185 OF 2013

(Before D.K.N. Marete)

BENARD NGUNGU MUTUA………………………….………………….…….CLAIMANT

Versus

GENERAL ALUMINIUM FABRICATORS….…………….........….……….RESPONDENT

JUDGEMENT

This matter came to court vide a memorandum of claim dated 20th July, 2013 and filed on 29th instant.  The issue in dispute is therein described as;

Wrongful and unfair termination of the claimant’s services and failure by the Respondent to pay terminal benefits to the claimant.

The matter is not defended, or at all.  The respondent has not filed a defence or entered appearance despite service.

The claimant’s case is that on or about the year 2002, the respondent employed the services of the claimant at a weekly salary of Ksh.2,317. 00 which converts to a monthly salary of Ksh.9,268. 00.  No letter of appointment was issued on this.  The claimant worked from 2002 with loyalty and diligence until 21st September, 2012 when he was wrongfully and unlawfully terminated by the respondent.  The respondent thereon refused to pay him his terminal benefits despite several demands and meetings held to resolve the matter out of court.  He therefore claims relief as follows;

One month’s pay in lieu of notice (2,317x4)         Ksh.   9,268. 00

Service pay (9,268/30x15x9)                                  Ksh.  40,626. 00

Leave accrued – (9,268/30x21x9)                        Kshs. 58,388. 40

TOTAL:                                                                       Kshs.108,282. 40

In the penultimate, the claimant submits that the respondent has refused and or neglected to make good the situation.  He prays for;

The sum of Kshs.108,282. 40 as particularized in paragraph 5 of the claim

Compensation for wrongful dismissal to a maximum of 12 month’s wages amounting to Kshs.111,216. 00

Cost of this suit

Interest in (i) and (ii) above

Any other relief as the Court may deem just.

The issues for determination are therefore as follows;

Was the termination of the employment of the claimant wrongful, unfair and unlawful?

Is the claimant entitled to the relief sought?

Who bears the costs of this claim?

The 1st issue for determination is whether the determination of the employment of the claimant was wrongful, unfair and unlawful.  It was.

From the onset, one notes that the matter is not defended and therefore one does not come to hear the other side.  The claimant brings out a case for termination but does not adduce a letter of termination or any evidence of payment as salary.  I therefore, in the absence of any other contrary data and or evidence  surmise a case for unlawful termination and find as such.

The 2nd issue for determination is whether the claimant is entitled to the relief sought.  He is.  I award relief as follows;

(i) One month’s pay in lieu of notice (2,317x4)                Ksh.9,268. 00

(ii) Service pay (9,268/30x15x9)                                          Ksh.40,626. 00

(iii) Six (6) months compensation for unlawful

termination of employment – Ksh.9,268x6                  Ksh.55,608. 00

TOTAL:                                                                                 Kshs.105,502. 00

(iv) The costs of this claim shall be borne by the respondent.

Delivered, dated and signed this 30th day of September, 2014.

D.K. Njagi Marete

JUDGE

Appearances

1.   Claimant in person.

2.    No appearance for the Respondents.