Jefferson Kimanthi Sakayo v Nanken Builders [2019] KEELRC 1857 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 1292 OF 2015

JEFFERSON KIMANTHI SAKAYO..................................CLAIMANT

VERSUS

NANKEN BUILDERS.....................................................RESPONDENT

JUDGMENT

1.   The Claimant instituted legal proceedings against the Respondent on 28 July 2015 alleging unfair termination of employment and breach of contract.

2.   According to an affidavit of service filed in Court on 14 August 2018, a director of the Respondent called Mr. Nanken was served with Summons on 20 April 2018.

3.   The Respondent failed to enter Appearance or file a Response.

4.   On 31 October 2018, the Court being satisfied with the service, directed that the Cause proceed to formal proof and the Claimant’s case was taken on 18 March 2019.

5.   The Claimant filed submissions on 28 March 2019.

6.   The Court has considered the pleadings, evidence and submissions.

Unfair termination of employment

7. The Claimant was employed by the Respondent on 2 May 2012 as a turn boy/mechanic and he served until 2 March 2015.

8.  The Claimant’s testimony that he was dismissed by a director of the Respondent without notice or the giving of reasons remain unchallenged.

9.  Section 35(1)(c) of the Employment Act, 2007 requires written notice of termination of employment of at least 28 days, unless it is a case of summary dismissal.

10.  The Claimant’s testimony on record that no written notice was issued remained uncontested and the Court therefore finds that the termination of the Claimant’s employment was unfair.

Pay in lieu of notice

11. With the conclusion, the Court holds that the Claimant is entitled to the equivalent of 1 month salary in lieu of notice (testimony was that the monthly pay was Kshs 9,000/-).

Compensation

12.  The Claimant was employed by the Respondent in 2012 and left in 2015. Considering the 3 year length of service, the Court will award compensation equivalent to 3 months gross wages.

Leave

13.  The Claimant did not lay any evidential foundation for this head of claim and it is declined.

Service pay

14. The Claimant sought Kshs 13,500/- on account of service pay.

15. There being no evidence that the Claimant was a member of a pension scheme or National Social Security Fund, the Court will allow the head of claim.

Conclusion and Orders

16.  The Court finds and declares that the termination of the Claimant’s employment was unfair and awards him

(a) Pay in lieu of notice       Kshs  9,000/-

(b) Compensation               Kshs 27,000/-

(c) Service pay                    Kshs 13,500/-

TOTAL                               Kshs 49,500/-

17.    Claimant to have costs on half scale.

Delivered, dated and signed in Nairobi on this 2nd day of April 2019.

Radido Stephen

Judge

Appearances

For Claimant          Mr. Obado instructed by Njogu & Associates Advocates

Respondent            did not participate

Court Assistant      Lindsey