Sadik Kitiwa v Dinesh Construction Co. Ltd [2018] KEELRC 1404 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 491 OF 2014

SADIK KITIWA..........................................................CLAIMANT

- VERSUS -

DINESH CONSTRUCTION CO. LTD................ RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 27th July, 2018)

JUDGMENT

The claimant filed the memorandum of claim on 26. 03. 2014 through Namada & Company Advocates. The claimant prayed for judgment against the respondent for:

a) A declaration that the respondent’s dismissal of the claimant from employment was illegal, unlawful, unfair, and inhumane and the claimant is entitled to payment of his due terminal benefits and compulsory damages.

b) An order for the respondent to pay the claimant his terminal dues and compensatory damages totalling to Kshs 647, 352. 00 (being one month in lieu of notice Kshs. 24, 000. 00; pay in lieu of annual leave for 4 years Kshs. 96, 000. 00; gratuity at half month pay for 4 years Kshs. 48, 000. 00; house allowance for 4 years at 15% of basic pay Kshs. 183, 600. 00; own tools allowance Kshs. 7, 752. 00; and 12 months’ pay in compensation   Kshs. 288, 000. 00).

c) The respondent to pay costs plus interest.

d) The respondent to issue a certificate of service.

The claimant’s case is that the respondent employed him from 04. 05. 2009 to 29. 07. 2013 as a carpenter. On 29. 07. 2013 as the claimant left for home, his supervisor Mauji instructed him to carry with him all his tools because he had been terminated. The claimant complied. On 03. 08. 2013 the claimant visited his place of work and his case was that he was chased away and told to take action as he deemed appropriate. He filed the present suit. The claimant stated that he had worked without a break in his service with the respondent.

Mwaniki Gachoka & Company Advocates acted for the respondent. It is the respondent’s case that the claimant was assigned to work for the respondent’s client and in the processes the claimant asked the client to pay extra money to him contrary to the policies. The claimant was questioned about the matter and he left employment on 29. 07. 2013 and never reported back. In his evidence he denied allegations of demanding extra pay from the customer and denied that he used respondent’s workshop materials or property to perform private work.

It is clear that the claimant was not accorded a notice and disciplinary hearing as envisaged in section 41 of the Employment Act, 2007. In any event, the respondent did not testify to establish the alleged reason for termination as per section 43 of the Act. The Court returns that the termination was unfair.

The Court makes the following findings on the remedies prayed for:

a) The claimant is entitled to one month pay in lieu of notice Kshs. 24, 000. 00under section 35 of the Act because the termination was abrupt.

b) The claimant prayed for pay in lieu of annual leave for 4 years Kshs. 96, 000. 00. The claimant testified he was not given annual leave throughout the service and the Court returns that he is entitled as prayed per section 28 of the Act.

c) The claimant prayed for gratuity at half month pay for 4 years Kshs. 48, 000. 00. There was no evidence of alternative pension arrangement and the Court finds that the claim is reasonable service pay in the circumstances and under section 35 of the Act.

d) The claimant prayer for house allowance for 4 years at 15% of basic pay Kshs. 183, 600. 00 was not justified. Parties appear to have agreed upon a consolidated pay inclusive a reasonable provision for rent. The prayer will fail.

e) The claimant prayed for own tools allowance Kshs. 7, 752. 00. There was no evidence of the value of the tools as claimed and the prayer will fail.

f) The claimant prayed for 12 months’ pay in compensation Kshs. 288, 000. 00 under section 49 of the Employment Act, 2007. The claimant desired to continue in employment. He had served for 4 years with a clean record. The Court has considered the aggravating factor as submitted that after termination the claimant was not given a certificate of service to facilitate alternative employment. Thus, the Court returns that the claimant has justified the prayer and it is awarded accordingly.

In conclusion judgment is hereby entered for the claimant against the respondent for:

1) The declaration that the respondent’s dismissal of the claimant from employment was illegal, unlawful and unfair.

2) Payment of Kshs.456, 000. 00 by 01. 10. 2018 failing interest to run thereon at Court rates from the date of this judgment till full payment.

3) The respondent to issue and deliver a certificate of service to the claimant per section 51 of the Act and by 01. 09. 2018.

4) The respondent to pay costs of the suit.

Signed, datedanddeliveredin court atNairobithisFriday 27th July, 2018.

BYRAM ONGAYA

JUDGE