Lucy Njeri Mungai v Mid City Services Limited [2018] KEELRC 2266 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NUMBER 1218 OF 2015

LUCY NJERI MUNGAI............................................CLAIMANT

VERSUS

MID CITY SERVICES LIMITED.......................RESPONDENT

JUDGEMENT

1. The claimant averred that she was employed by the respondent as a waiter on or about 4th April, 1999 at a monthly salary of kshs 4,000/= per month without housing allowance.  This salary and subsequent ones, the claimant averred were below the legal minimum wage hence the claimant sought to be paid the difference.

2. According to the claimant, her services were terminated on 4th June, 2015 without any reason and was not given two months salary in lieu of notice as provided in the Regulation of Wages Order.  The claimant further sought to be paid severance pay for the period worked and overtime.

3. The respondent on its part averred that the suit was defective as the respondent company did not exist in law as at 4th April, 1999 when the claimant alleges to have been employed.  The respondent therefore contended that there could not have been unfair dismissal where there was not employment.  The respondent further averred that any claim filed on 10th July, 2015 in respect of any period beyond 6 years from the date of accrual of such cause of action is statutorily barred by virtue of section 4 of the Limitation of Actions Act.

4. The respondent further averred that its business operated from 8. 00 a.m. to 5. 00 p.m.  On weekdays and 9. 00 a.m. to 1. 00 p.m. on Saturdays and remained closed on Sundays and public holidays.

5. At the hearing the claimant attended and the matter proceeded ex-parte after the court became persuaded that the respondent was properly served with the hearing notice.  The claimant informed the court that she was employed in 1999 April as a waiter at a monthly salary of Kshs 4,000 which was later increased to Kshs 4500.  In 2006, her salary was increased to Kshs 7,000 and later Kshs 10,000.  She used to report to work from 6. 00 a.m. and leave at 6. 00 p.m.

6. It was further her testimony that she left employment on 4th June, 2015.  According to her, she asked for leave to go to hospital and was given two days.  She was prescribed for injection and needed two more days.  When she requested the extra two days she was told to rest and never come back to work.  She was paid Kshs 9,120 through mpesa.

7. As correctly pleaded by the respondent no claim is sustainable which is beyond six years from the date the suit was filed.  That is to say any compensation awardable cannot extend beyond six years from the date of filing the suit which is 2009.

8. The court therefore awards the claimant as follows:

a. Under payment of wages from 2009                 86,205. 35

b. One month’s salary in lieu of notice                  10,000. 00

c. Six months salary as compensation

for unfair termination                                             60,000. 00

156,205. 35

d. Costs of the suit

9. Items (a), (b) and (c) shall be subject to taxes and statutory deductions.

10. It is so ordered.

Dated at Nairobi on this 23rd day of February 2018

ABUODHA J. N.

JUDGE

Delivered at Nairobi on this 23rd day of February 2018

ABUODHA J. N.

JUDGE

In the presence of:-

……………………for the Claimant

……………………for the Respondent