Climate Pal Limited v John Masai Kapolon [2018] KEELRC 2237 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NUMBER 1431 OF 2014

CLIMATE PAL LIMITED..........................CLAIMANT

VERSUS

JOHN MASAI KAPOLON.....................RESPONDENT

JUDGEMENT

1  By a memorandum of claim filed on 25th August, 2014 the claimant averred that on 2nd June, 2014 the respondent in a casual manner tendered his resignation from the claimant with immediate effect.  This was contrary to the terms of the contract that either party would terminate the contract after giving three months notice.  According to the claimant, the respondent neither gave notice not paid salary in lieu thereof.

2  The claimant further averred that the respondent in the course of his employment was issued with a laptop computer which he has continued to retain without the authority of the claimant.  Further the respondent failed to submit to the claimant  information on key suppliers of services, list of beneficiaries, list and contract of partners and stake holders and all records relating to claimant’s business strategies.

3 The claimant further averred that the respondent neglected his duties or willfully siphoned monies from the claimant causing the claimant to lose over USD 10,000/= which the respondent has never accounted for.  Further on or about the 3rd week of May, 2014 the respondent received Kshs 88,950/= which he has failed to account for.  In the same month of May the respondent received Kshs 19,305/= being proceeds of sale of cook stoves but did not accounted for the money.

4  The claimant therefore contended that the respondent’s conduct was in breach of the express provisions of the terms of conditions of service, the Employment Act and other relevant labour laws.  The claimant therefore sought judgement for 3 months salary in lieu of notice and reimbursement of the money the respondent could not account for.

5  The respondent neither entered appearance nor filed a response to the claim hence the matter proceeded as an undefended claim.

6  Mr Gitau for the claimant gave evidence before the court in which he stated that he was a director of the claimant and that the respondent was employed as Chief Operations Officer on 13th December, 2012 and worked for about one year and seven months.  According to the witness the respondent wrote an email saying he had left employment.  He  was required to give three months’ notice of termination or pay in lieu.

7  According to Mr Gitau the respondent left with everything he had for the company including a laptop which contained the claimant’s clients database and several smart phones.  The witness further stated that the respondent left with money collected from the field.

8  The matter proceeded as an undefended cause hence most of the averments by the claimant largely remained uncontested.  In a claim for unfair termination or wrongful dismissal the onus is usually on the claimant to show that the termination or dismissal was contrary to the contract of employment and was done contrary to a fair procedure.

9  The respondent’s contract of employment provided that either party could terminate the same by either giving three month’s notice or payment in lieu thereof.  No such notice was given by the respondent hence the claimant would be entitled to judgement in that respect.

10 Concerning other heads of claim the court was not persuaded that these were sufficiently proved.  No evidence was tabled of inventory of items the respondent was allocated when he took up employment to show he was assigned the alleged laptops and smartphones.  Further no sufficient evidence was produced to support the claim that the respondent received money and failed to account for the same.  Mr Gitau’s evidence was quite superficial on these issues and was lacking in detail to persuade the court.  It would therefore not be safe to enter judgement against the respondent on the basis of evidence that did not meet the threshold of proof required in civil cases.  The failure by the claimant to defend the claim did not lessen this burden.

11  In conclusion the court enters judgement against the respondent for three month’s salary in lieu of notice at Kshs 705,000/= together with costs of the suit.

12  It is so ordered.

Dated at Nairobi this 16th day of February, 2018

Abuodha J. N.

Judge

Delivered this 16th day of February, 2018

Abuodha J. N.

Judge

In the presence of:-

……………...…… for the Claimant

………………. for the Respondent