Benson Amuhaya v Elmak Chemicals Limited [2018] KEELRC 1946 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 720 OF 2017

BENSON AMUHAYA...........................................CLAIMANT

- VERSUS -

ELMAK CHEMICALS LIMITED................RESPONDENT

(Before Hon. Justice Byram Ongaya on Thursday 31st May, 2018)

JUDGMENT

The claimant filed the statement of claim in person on 18. 04. 2017. The claimant prayed for judgment against the respondent for:

a. A declaration that the termination of the claimant’s employment or dismissal was unfair.

b. A declaration that the respondents fundamentally breached its obligations under the Constitution of Kenya and the Employment Act, 2007.

c. An order directing or compelling the respondent to pay the claimant the sum of Kshs. 218, 400. 00 with interest at court rates and particularised as Kshs. 13,000. 00 one months’ pay in lieu of notice; salary for October 2016 Kshs.13,000. 00, annual leave pay for 2013 to 2016 Kshs.36, 400. 00; and compensation for unfair termination Kshs.156, 000. 00.

The summons and the statement of claim were served upon the respondent on 20. 04. 2017 and an affidavit of service filed on 18. 05. 2017. The respondent failed to enter appearance or to file a response to the claim. Despite service the respondent did not attend at the hearing of the suit. The hearing proceeded ex-parte and the claimant testified to support his case.

The claimant testified that he was employed by the respondent in September 2013 as a general worker. He performed duties of a loader. On 02. 11. 2016 the claimant asked for permission of absence for a week to attend to his father’s funeral. The leave was granted. He was not paid salary for    October, 2016. On 07. 11. 2016 the respondent’s acting director one Abdi told the claimant that his employment had been terminated. On 08. 11. 2016 the claimant reported at work and he was told that he had been terminated. A demand letter was made through Kituo Cha Sheria but the respondent refused to cooperate or to resolve the matter. The claimant filed the suit.

The court has considered the pleadings and the evidence and returns as follows:

a. The claimant was clearly dismissed without a valid reason and there was no due process. The termination was unfair for want of a valid reason as envisaged in section 43 of the Employment Act, 2007. The claimant had a clean record of 2 years’ service; he did not contribute to his termination; and he desired to continue in employment. The aggravating factor was that no reason whatsoever was advanced for the sudden oral termination. The Court returns that in view of those factors, the claimant will be awarded Kshs. 156, 000. 00 in compensation under section 49 of the Act and as prayed for.

b. The claimant confirmed that he worked in October 2016 but he was not paid. He also confirmed that he was not given a termination notice. He is awarded Kshs.26, 000. 00 for those two headings and as prayed for.

c. The respondent will pay the claimant’s costs of the suit fixed at Kshs.25, 000. 00.

In conclusion, judgment is hereby entered for the claimant against the respondent for:

a. The declaration that the termination of the claimant’s contract of service by the respondent was unfair.

b. The respondent to pay the claimant Kshs. 243, 400. 00 by 01. 08. 2018 failing interest to run at court rates from the date of this judgment till full payment.

Signed, datedanddeliveredin court atNairobithisThursday 31st May, 2018.

BYRAM ONGAYA

JUDGE