Felistus Kavuli Muoki v Savannah Academy [2019] KEELRC 2403 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1389 OF 2016

FELISTUS KAVULI MUOKI...................................................CLAIMANT

VERSUS

SAVANNAH ACADEMY......................................................RESPONDENT

JUDGMENT

Introduction

1. The claimant brought this suit on 15. 7.2016 contending that she was unfairly terminated by the respondent and prayed for the following reliefs

(a) One month’s pay in lieu of notice.........................Kshs. 13,000. 00

(b) Annual leave; 13000/30 x 21 x 9. .........................Kshs. 81,900. 00

(c) Housing allowance; 15/100x 13000x12x9years...Ksh.210,000. 00

(d) Compensation for unfair termination (1300x12)..Ksh.156,000. 00

(e)  Salary for ten months .......................................... Ksh.130,000. 00

Total                                                                     Kshs.591,500. 00

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2. The respondent entered appearance through an advocate on 19. 8.2016 but failed to file defence to the suit. Consequently, the suit proceeded by formal proof on 24. 9.2018 when the claimant adopted her written statement, and documentary evidence and filed written submissions to dispose of the suit.

3. She stated that she was employed by the respondent on 9. 1.2007 as a Secretary/Receptionist and produce her appointment letter as exhibit. She further stated that she worked diligently until 6. 11. 2015 when she was unlawfully and wrongfully terminated and denied her terminal dues. That thereafter she served a demand letter through, Kituo Cha Sheria but the letter was never responded to and she therefore prayed for the reliefs sought in her sought. That as at the time of the termination her salary was Kshs.13,000 per month.

4. By her submissions, she contended that her termination was done after serving for 9 years 10 months and it was done in contravention of section 41 of the Employment Act. That she was not given a fair hearing or any reason and urged that it was unfair, she therefore prayed for the reliefs sought in her suit.

5. After careful consideration of the evidence and the submissions tendered, there is no dispute that the claimant was employed by the respondent as a Secretary/Receptionist. The issues for determination are:

(a) Whether her employment was unfairly/wrongfully terminated.

(b) Whether reliefs sought should be granted,

Unfair/wrongful termination

6. Under section 45(2) of the Employment Act, termination of employment is unfair and therefore unlawful if the employer fails to prove that it was grounded on a valid and fair reason and that it was done after following a fair procedure. A valid and fair reason is one that relates to the employees conduct, capacity and compatibility or based on the employer’s operational requirement, fair procedure mainly refers to the aspect of according the employee a hearing before termination.

7. In this case, the claimant’s evidence that she was wrongfully and unlawfully terminated has not been contested or rebutted. The respondent never filed defence nor tendered any evidence and as such the said burden of proof has not been discharged on a balance of probability. Consequently, I return that the termination of the claimant’s employment contract was done without a valid reason and without following a fair procedure and that rendered it unfair within the meaning of section 45 of the Act.

Reliefs

8. Under section 49(1) of the Act, I award the claimant one month salary in lieu of notice plus 12 months’ salary compensation for unfair termination. In awarding the said compensation, I have considered the claimant’s long service of almost 10 years and the fact that she did not contribute to the termination through misconduct.

9. I further award her the claim for leave at the rate of 21 days per year. The claim for House Allowance is dismissed because the appointment letter produced described her salary as gross pay. Finally, the claim, for unpaid salary for 10 months before termination is allowed as prayed.

Disposition

10. In conclusion I enter judgments for the claimant against the respondent in the following terms:

a. Notice ………………………………………………....13,000

b. Compensation……………………………………..…156,000

c. Leave for 9 years…………………………………...…81,900

d. Salary arrears…………………………………….….130,000

263,900

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The claimant will also have costs and interest from the date hereof but the decreed sum shall be less statutory deductions.

Dated, Signed and Delivered in Open Court at Nairobi this 31stday of January 2019

ONESMUS N. MAKAU

JUDGE