James Kioko Mutunga v Friends Diner Company Ltd & Kedheiha Workers [2017] KEELRC 1801 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NUMBER 2073 OF 2014

JAMES KIOKO MUTUNGA………………………………………CLAIMANT

VERSUS

FRIENDS DINER COMPANY LTD..………….....………1ST RESPONDENT

KEDHEIHA WORKERS………………….……………..2ND RESPONDENT

JUDGMENT

1. The claimant averred that he was employed by the respondent as a waiter until 26th August, 2014 when his services were terminated.  According to him, during the period he served the respondent he served diligently and without any bad record or warning.

2.  The 1st respondent on its part pleaded that the termination of claimant’s services was on account of redundancy and not on account of his union membership.  This was done through a letter dated 26th August, 2014 giving the claimant one month notice.  The 1st respondent further averred that the 2nd respondent immediately responded to the notice by booking a joint meeting with the 1st respondent.

3. According to the 1st respondent, together with the 2nd respondent a joint tabulation of the claimant’s benefits was done amounting to Kshs 58,451. 92 which comprised of unutilized leave, accumulated overtime, service gratuity and salary for September 2014.  The claimant declined to collect the same leaving the 1st respondent with no option but to invoke section 62 of the Labour Relations Act by reporting the dispute to 2nd respondent’s Nairobi Branch offices.  The 1st respondent further averred that the claimant served the 2nd respondent with seven days’ notice of intention to sue for violation.

4.  In his oral evidence in court, the claimant contended that his services were terminated on account of his union membership.  He alleged that the respondent threatened him that if he did not quit the union his services would be terminated.  He further stated that he sued his own union, the 2nd respondent for failure to defend him.  He denied the 1st respondent had the right to declare redundancy since they were employing more people despite claims of low business.  He further stated that he refused to collect his dues from the 1st respondent because he did not agree with the computation.

5. The letter dated 26th August, 2014 attached to the claimant’s memorandum of claim informed him the 1st respondent was carrying out a restructuring operation in the face of diminished business.  The claimant was therefore informed of intention to terminate his services.  Whereas the claimant alleges his services were terminated on account of union membership no evidence was led or alluded to by him in support of this allegation.  Besides if this could have been true his union which he ironically turned round to sue in these proceedings could have raised the issue.  The court is therefore of the view that the termination of the claimant’s services was on account of redundancy as pleaded by the 1st respondent.

6. The court in the circumstances finds the claim without merit and hereby dismisses the same.  The court however directs that the 1st respondent pays the claimant the sum of Kshs 58,451. 92 as computed by the 1st and 2nd respondent.   This payment shall be subject to statutory deductions.

It is ordered.

Dated at Nairobi this 10th day of February 2017

Abuodha Jorum Nelson

Judge

Delivered this10th day of February 2017

In the presence of:-

Abuodha Jorum Nelson

Judge