Edwin Likhanga Mudi v Rasik Javda t/a Vekaria Property Developers [2013] KEELRC 808 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO 1669 OF 2011

EDWIN LIKHANGA MUDI......................................................CLAIMANT

VS

RASIK JAVDA

T/A VEKARIA PROPERTY DEVELOPERS............................RESPONDENT

AWARD

Introduction

1.     The Claimant's claim which is brought by way of a Memorandum of Claim dated 27th September and filed in Court on 29th September 2011 is for wrongful and unfair termination of employment. The Respondent filed a Response on 1st March 2013 and the case was heard on 31st May 2013.

2.     The Claimant appeared in person while the Respondent was represented by Mr. Makokha of Namada & Co Advocates. The Claimant testified on his own behalf and Joyce Nyambura Wambugu testified on behalf of the Respondent. Both parties filed written submissions.

The Claimant's Case

3.     According to the Claimant, he was employed by the Respondent in the year 2003. He was not issued with a letter of appointment. The Claimant worked with the Respondent until 13th November 2010 when his employment was terminated without notice.

4.     It was the Claimant's case that his termination was motivated by his request for a pay rise. His daily rate as at the time he left employment was Kshs. 450. The Claimant told the Court that he did not take his annual leave from 2004-2010 and that he was not paid his terminal benefits.

5.     The Claimant therefore claimed the following:

Notice pay...............................................................Kshs. 11,700

Accrued annual leave ........................................................46,800

Severance pay...................................................................40,950

12 months' pay in compensation for unfair termination...........140,400

Costs and interest

Any other relief the Court may deem just to grant

The Respondent's Case

6.      In his Memorandum of Response, the Respondent stated that the Claimant deserted work on 16th November 2010 after the Respondent declined his demand for an immediate salary rise. The Respondent further averred that the Claimant had in the course of his employment taken advances on account of funeral and medical expenses all amounting to Kshs. 88,520 which were to be off set against any dues payable to the Claimant.

Findings and Determination

7.      The first issue for determination in this case is whether the Claimant has made out a case for unfair termination of employment.

8.      Section Section 47(5) of the Employment Act, 2007 provides that:

(5) For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.

9.     The Claimant told the Court that he was terminated after asking for a salary rise. After his termination, the Claimant lodged a complaint with the District Labour Office, Nairobi which he later withdrew by letter dated 11th January 2011.  On his part, the Respondent maintained that the Claimant deserted duty after his demand for a salary rise was declined. From the evidence before me, no case for unfair termination was made out and the claim for compensation therefore fails. The claim for notice pay also fails.

10.    With regard to the claim for accrued leave, the Respondent produced a petty cash voucher as evidence of pay in lieu of leave for the year 2009. The logical conclusion is that the leave for the years prior to 2009 had been exhausted. I therefore award the Claimant pay for prorata leave for 2010 only. Since, there was no evidence that the Claimant was a contributing member of the National Social Security Fund (NSSF), his claim for service pay is allowed.

11.    The Respondent told the Court that any payment due to the Claimant should be off set against advances made to him totaling Kshs. 88,520. However, the petty cash vouchers produced in support of the Respondent's claim in this regard did not disclose whether the payments made to the Claimant were in the nature of a loan or gratuitous support. I therefore find that the Respondent claim which should have been brought by way of counterclaim was not proved and cannot therefore be used as a set off against any benefits due to the Claimant.

12.    In the final analysis I make an award in favour of the Claimant as follows:

Prorata leave (Kshs. 11,700x1. 75x10).............................Kshs. 6,825

30

Service pay (Kshs. 11,700x15x8)...........................................46,800

30

Total..................................................................................53,625

I further award the Claimant the costs of this case.

DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 1ST DAY OF      OCTOBER 2013

LINNET NDOLO

JUDGE

In the Presence of:

..............................................................................................Claimant

............................................................................................Respondent