Maxwell O Onyango v Sparkle Brands Limited [2018] KEELRC 1263 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO.  56 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

MAXWELL O. ONYANGO...................................................CLAIMANT

VERSUS

SPARKLE BRANDS LIMITED....................................RESPONDENT

JUDGMENT

By statement of claim dated and filed on 12th February 2015 the claimant avers that his employment was terminated unfairly by the respondent after working for three months.  He prays for payment of Kshs.75,000 being three months salary in lieu of leave and Kshs.2,083 being earned  leave.  He further pays for certificate of service, costs and interest.

The respondent filed a memorandum of defence denying the averments in the statement of claim.  The claimant thereafter filed a reply to defence joining issues with the respondent.

The case was heard on 22nd June 2017 when the respondent failed to attend court although the date was taken in court by consent.  The respondent had further failed to pay court adjournment fees and claimant’s counsel’s fees ordered on 22nd November 2016 when the respondent caused adjournment of the case.

The claimant testified that he is an accountant by profession and was employed by the respondent from October 2014 to January 2015 a period of three months.  He was not issued with a letter of appointment.  He discussed the terms of employment with the Director of the respondent Mr. Le Pen.  As an Accountant he was responsible for general ledger, internal financial system and all invoices that were going out to clients.  He was also responsible for banking and reconciliation and entering of raw data into accounting software.

The claimant testified that he went home for Christmas and New Year holidays and reported back to work on 5th January 2015.  He testified that his employment was terminated by a phone call on the day he reported back to work.

His salary was shs.25,000 per month gross as reflected in the payslip which he produced.  He was not given notice or paid in lieu.  He was not paid leave due and was not issued with a certificate of service.

He prayed for payment of shs.75,000 in lieu of notice and shs.6,562 in lieu of earned leave.

Determination

The respondent having not attended court on the hearing date, the testimony of the claimant is uncontroverted.  I therefore find that the claimant’s employment was terminated unfairly as it was without a letter of termination, without notice and without giving reason for termination.

The claimant is thus entitled to one month’s salary in lieu of notice as provided in Section 35 as read with Section 36 of the Employment Act and not three months’ notice as claimed. He is further entitled to 5. 25 days’ leave which works out at shs.6,250/=.

I therefore award the claimant the following –

1.    Shs.25,000 being pay in lieu of notice

2.    Shs.6,250 being pay in lieu of leave.

3.    Certificate of service.

4.    Costs

The decretal sum shall attract interest at court rates from date of judgment.

DATED AND SIGNED AT NAIROBI ON THIS 19TH DAY OF JULY 2018

MAUREEN ONYANGO

JUDGE

DATED AND DELIVERED AT KISUMU ON THIS 30TH DAY OF JULY 2018

MATHEWS NDERI NDUMA

JUDGE