Felister Wawira Nyagah v Thika Coffee Mills Limited [2019] KEELRC 1648 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 2056 OF 2014

FELISTER WAWIRA NYAGAH................. CLAIMANT

- VERSUS -

THIKA COFFEE MILLS LIMITED...... RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 17th May, 2019)

JUDGMENT

The claimant filed the memorandum of claim on 17. 11. 2014 through Ameli Inyangu & Partners Advocates. The claimant prayed for judgment against the respondent for:

a) Terminal dues in the sum of Kshs. 206, 752. 00 (being Kshs.9, 989. 00 26 days salary for March 2013; Kshs. 23, 052. 00 January 2012 and February 2013; one month salary in lieu of notice Kshs. 11, 526. 00; accrued leave for 30 days Kshs.11, 526. 00; 12 months pay as compensation for unlawful terminationKshs.138, 312. 00; and unpaid overtime for June to October 2012 (190. 5 hours) Kshs. 12, 347. 00).

b) Exemplary damages.

c) Certificate of service.

d) Cost of the suit plus interest.

The statement of defence was filed on 15. 12. 2014 through A. Thuo Kanai Advocate. The respondent prayed that the claimant’s suit be dismissed with costs.

There is no dispute that parties were in a contract of service. The respondent employed the claimant initially as a casual employee and later as a field clerk per letter dated 22. 11. 2010. She served as a field clerk in the Field Service Department as deployed at the respondent’s Thika office.

The evidence is that on 07. 12. 2012 the claimant failed to avail certain milling and marketing agreements for the year 2012/2013 for purposes of filing returns at the Coffee Board of Kenya. The respondent’s managing director had requested her to avail the records. She was subjected to disciplinary action and her contract of service dated 22. 11. 2010 was terminated. The claimant’s trade union intervened, the claimant apologised and she was reinstated in employment on 20. 03. 2013 and deployed in the respondent’s Western Region at Chwele office in Bungoma County.  In August 2013 she applied for leave to attend to personal matters and she was to resume duty on 10. 08. 2013. The claimant failed to resume duty at the end of the leave and the managing director spotted her at the factory in Thika on 26. 08. 2013. By the letter dated 26. 08. 2013 delivered on 29. 08. 2013 she was asked to explain her absence from duty effective 10. 08. 2013. The claimant replied by her letter of 31. 08. 2013. She explained that she had double tragedy at her family and thereafter fell ill.  She sincerely apologised for miscommunication about her case. The respondent’s case is that as per the sick leave filed for the claimant, she was on treatment from 28. 08. 2013 to 12. 09. 2013 clearly long after 10. 08. 2013, the effective date of the absence and advising on resumption of duty on 13. 09. 2013 on light duty.

By the letter dated 12. 09. 2013 the claimant was dismissed from employment on account of the absence from duty effective 10. 08. 2013.

The Court has considered the pleadings, the evidence, and the submissions. It is clear that the claimant had no valid explanation for absence from duty effective 10. 08. 2013 and she had no explanation for the failure to seek the extension of leave which was ending effective 10. 08. 2013 as circumstances may have warranted. It would appear that the claimant was not happy with the deployment at Chwele but that did not diminish the allegations as had been levelled against her. The respondent has established that the reason for termination related to the respondent’s operational requirements and the claimant’s misconduct as per section 45 of the Employment Act, 2007 as the reason was valid or genuine as at termination as envisaged in section 43 of the Act.

It is also true that the respondent did not accord the claimant a hearing prior to the summary dismissal as per section 41 of the Act. To that extent the termination was procedurally unfair. However the Court has considered the claimant’s previous indiscipline but she had been reinstated after apology and the trade union’s intervention so that looking at her established misconducts she contributed to her predicament 100% and the Court returns that she is not deserving of any compensation under section 49 of the Act.

The claimant is not entitled to pay for January and February 2013 and 26 days in March 2013 during which period she had been terminated but then reinstated  by the letter dated 20. 03. 2013 and effective 25. 03. 2013. In particular the claimant accepted the respondent’s terms and conditions of the reinstatement per the letter dated 12. 02. 2013 thus, “1. You will accept that there was no salary payment or related payment that is due and payable to you from the date of your summary dismissal to the date that you will be formally reinstated.” The Court returns that the claimant is bound by her acceptance of that condition of reinstatement and as submitted for the respondent she cannot renege as estoppel applies accordingly.

The claimant is entitled to the certificate of service under section 51 of the Employment Act, 2007.

The Court has considered the parties’ margins of success and each party shall bear own costs of the suit.

In conclusion judgment is hereby entered for the parties for:

a) The respondent to deliver to the claimant a certificate of service by 02. 06. 2019.

b) Each party to bear own costs of the suit.

Signed, dated and delivered in court at Nairobi this Friday 17th May, 2019.

BYRAM ONGAYA

JUDGE