Erick Onono Nyangwachi v Esgray Company Limited [2018] KEELRC 441 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 112 OF 2016

(Before D. K. N. Marete)

ERICK ONONO NYANGWACHI................................................CLAIMANT

VERSUS

ESGRAY COMPANY LIMITED.............................................RESPONDENT

JUDGEMENT

This matter was originated by way of a Statement of Claim dated 25th January, 2016.  It does not disclose any issue on its face.

The matter is not defended or at all.

The claimant’s case is that at all material times relevant to this suit the respondent was operating various businesses including but not limited to a gymnasium.

The claimant’s further case is that on or about November, 2009, he was employed by the respondent vide an oral contract as an attendant at his gymnasium at a gross salary of 6,000. 00 per month.

The claimant’s other case is that he diligently discharged his duties until 17th November, 2014 when the respondent without any lawful cause or explanation and in breach of the contract of employment proceeded to terminate his services.  This was for demanding payment of his dues for overtime done at the respondent’s behest and instance between 14th October, 2014 and 30th October, 2014 when his colleague and counterpart was suspended from employment. He has even since prevailed upon the respondent to claim his dues to no avail.

He claims as follows;

a. Underpayment of wages November 2009to 30th April 2010                       Kshs.780. 00/

b. Underpayment of wages 1st May 2010to 31st December 2010                   Kshs.5,944. 00/

c. Underpayment of wages 1st May 2011to 31st December 2011                    Kshs.4,688. 00/

d. Underpayment of wages 1st May 2012To 31st December 2012                  Kshs.4,638. 40/

e. Underpayment of wages 1st May 2013to 30th April 2014                          Kshs.9,371. 40/

f. Underpayment of wages 1st May 2014to 30th November 2014                   Kshs.6,247. 60/

g. Unpaid house allowance 1st November 2009to 31st December 2010        Kshs.919. 50/

h. Unpaid house allowance 1st May 2011to 30th April 2011                         Kshs.4200. 00/

i. Unpaid house allowance 1st May 2011to 31st  December 2011                 Kshs.12,137. 40/

j. Unpaid house allowance 1st January 2012to 30th April 2012                   Kshs.13,654. 80/

k. Unpaid house allowance 1st May 2012to 31st December 2012                Kshs.9,103. 20/

l. Unpaid house allowance 1st January 2013to 30th April 2013                  Kshs.4,800. 00/

m. Unpaid house allowance 1st May 2013to 31st December 2013              Kshs.11,737. 20/

n. Unpaid house allowance 1st January 2014to 30th April 2014                 Kshs.5,868. 60/

o. Unpaid house allowance 1st May 2014to 30th November 2014                 Kshs.11,737. 20/

p. Unremitted deductions to NSSFNovember 2009 to 31st December 2009   Kshs.800. 00/

q. . Unremitted deductions to NSSFJanuary 2010 to 30th April 2010            Kshs.1,600. 00/

r. Unremitted deductions to NSSFIn February 2011                                       Kshs.400. 00/

s. Unremitted deductions to NSSFMay 2014 to November 2014                    Kshs.2,800. 00/

t. Unremitted deductions to NHIFNovember 2009 to 31st December 2009    Kshs.320. 00/

u. Unremitted deductions to NHIFin October        2010                                 Kshs.160. 00/

v. Unremitted deductions to NHIFApril 2013 to May 2013                            Kshs.320. 00/

w.Unremitted deductions to NHIFJuly 2013 to December 20013                  Kshs.960. 00/

x. Unremitted deductions to NHIFApril 2013 to May 2013                           Kshs.320. 00/

y. Unremitted deductions to NHIFJuly 2013 to December 2013                   Kshs.960. 00/

z. Unremitted deductions to NHIFJanuary 2014 to June 2014                     Kshs.960. 00/

aa. Unremitted deductions to NHIFAugust 2014 to September 2009           Kshs.320. 00/

bb. Unremitted deductions to NHIFIn November 2014                                Kshs.160. 00/

cc. One month pay in lieu of notice                                                                    Kshs.9,780. 95

dd. Unpaid leave allowance                                                                               Kshs.17,515. 00

ee. 6 accrued leave days between 1st November2009 and 31st October 2010       Kshs.1,231. 20/

ff. 8 accrued leave days between 1st November2010 and 31st October 2011         Kshs.2,064. 80/

gg. 6 accrued leave days between 1st November2011 and 31st October 2012       Kshs.1,827. 60/

hh. 6 accrued leave days between 1st November2012 and 31st October 2013       Kshs.2,823. 60/

ii. 14 accrued leave days between 1st November2013 and 31st October 2014      Kshs.6,588. 40/

jj. 8 hours overtrime for 15 days period workedDouble shift betwe4en 14th October 2014And 30th October 2014  Kshs.10,488. 00/

Total                                                                         Kshs.168,226. 85

He prays as follows;

a. The principle sum of Kshs.168,226. 85/;

b. Compensation for wrongful dismissal to a maximum of 12 months wages amounting to Kshs.118,710/;

c. Interest on (a) and (b) above at the prevailing commercial bank rates from the due date until payment in full;

d. Costs of the suit;

e. Any other relief that this Honourable Court may deem just and fit to grant.

This matter came to court variously until the 19th October, 2018 when the claimant, in the absence of the respondent submitted on an adoption of his witness statement and list of documents as his evidence in support of the claim.  He also urged the court to make a determination on the basis of the pleadings on the record of court.

As aforetasted, this matter is not defended or at all.  This is despite service to the respondent.

The issues for determination therefore are

1. Whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful?

2. Whether the claimant is entitled to the relief sought?

3. Who bears the costs of this claim?

The 1st issue for determination is whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful.  The claimant sought to rely on his list of documents and witness statement in support of his claim.  These are determinate of a valid claim for unlawful termination of the employment of the claimant by the respondent.  In the absence of a defence and any evidence controverting the claim, it remains standing.  I therefore find a case of unlawful termination and hold as such.

The 2nd issue for determination is whether claimant is entitled to the relief sought.  He is. Having won on a case of unlawful termination of employment, he becomes entitled to the relief sought.

I am therefore inclined to allow the claim and order relief as follows;

i. One (1) months salary in lieu of notice......................................Kshs.6,000. 00

ii. Twelve (12) months salary as compensation for unlawful termination

of employment Kshs.6,000. 00 x 12=...........................................Kshs.72,000. 00

iii. 8 hours overtime for 15 days period worked on double

shift between 15th October, 2014 to 30th October, 2014. ...........Kshs.10,488. 00

Total of claim..............................................................................Kshs.88. 488. 00

iv. The respondent be and is hereby ordered to issue a certificate of service to the claimant within fourteen (14) days of this judgement of court.

v. The costs of this claim shall be borne by the respondent

Dated and signed this 29th day of November 2018.

D.K. Njagi Marete

JUDGE

Delivered and signed this 3rd day of December 2018.

Maureen Onyango

PRINCIPAL JUDGE

Appearances

1. Miss Oginda holding brief for Mundia instructed by P. W. Mundia & Company Advocates for the claimant.

2. No appearance for the respondent.