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ELRCPartially AllowedCause No. 41 of 2013· [2015] KEELRC 668 (KLR)

Francis Okaridi Ojuma v Patriotic Guards Limited [2015] KEELRC 668 (KLR)

Employment and Labour Relations Court of Kenya
31 July 2015
672 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a resigned security guard Kshs 106,174 in unpaid dues but rejected his wrongful dismissal claim because he quit voluntarily.

What this practically means

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Executive summary

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In an uncontested employment cause before the Employment and Labour Relations Court at Nairobi, the claimant, appearing in person, sought unpaid salary for 7 months (Kshs 46,480), 11 days worked in October 2011 (Kshs 2,434), salary balances for December 2009 (Kshs 2,140) and April 2011 (Kshs 1,640), service payment for 9 years at 15 days per year (Kshs 29,880) and unremitted NSSF dues (Kshs 23,600), plus compensation for wrongful dismissal. The respondent never filed a statement of defence despite appearance being entered by its advocates, who also failed to attend the hearing. The court was satisfied that service was properly effected on the respondent and its advocates, who were in default without justification, and that the claimant had proved on a balance of probabilities that he worked for the respondent and was not paid his terminal benefits upon resigning on 13th October 2011. The court dismissed the compensation for wrongful dismissal claim as having no basis, since the claimant had resigned by letter. It awarded the terminal dues claimed, totalling Kshs 106,174, with interest at court rates from the date of judgment until payment in full, and ordered the respondent to pay the costs of the suit. Judgment was delivered at Nairobi on 31st July 2015 by Mathews N. Nduma, Principal Judge.

Key legal issues

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01

Service and default of the Respondent

Holding

Service was properly effected on the Respondent and its advocates, who defaulted in filing a defence and attending the hearing without justification

Reasoning

The process server served the memorandum of claim on the Managing Director, Mr Kigen, who signed for it, and the amended statement of claim was served on Mr Benson Kiprotich who acknowledged receipt. The advocates on record were served with a mention notice but neither filed a statement of defence nor attended court, warranting the matter to proceed by way of formal proof.

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02

Entitlement to terminal benefits

Holding

The Claimant proved on a balance of probabilities that he worked for the Respondent as claimed and was unpaid terminal dues on resignation

Reasoning

In an uncontested claim proved by formal proof, the court found the claimant's testimony established the employment relationship and the unpaid dues. The court awarded the specific sums claimed: salary arrears, unpaid October 2011 days, December 2009 and April 2011 salary balances, service gratuity for 9 years at 15 days per year, and unremitted NSSF deductions, totalling Kshs 106,174.

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03

Compensation for wrongful dismissal

Holding

The claim failed because the Claimant resigned voluntarily and was not dismissed

Reasoning

The claimant's own averments and testimony established that he resigned by letter dated 13th October 2011 and stopped working. Since there was no dismissal by the respondent, there could be no compensation for wrongful dismissal, and that head of claim was dismissed with costs.

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Legal principles established

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  • Where a respondent is properly served but fails to file a defence or attend the hearing without justification, the claimant may prove the claim by formal proof on a balance of probabilities

Court orders

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  1. 1.Award of Kshs 46,480 as arrears salary for 7 months
  2. 2.Award of Kshs 2,434 as unpaid salary for 11 days in October 2011
  3. 3.Award of Kshs 2,140 as balance of salary for December 2009
  4. 4.Award of Kshs 1,640 as balance of salary for April 2011
  5. 5.Award of Kshs 29,880 as service gratuity for 9 years worked
  6. 6.Refund of unremitted NSSF deductions of Kshs 23,600
  7. 7.Total award of Kshs 106,174 with interest at court rates from date of judgment until payment in full
  8. 8.Respondent to pay costs of the suit
  9. 9.Dismissal of the claim for compensation for wrongful dismissal with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations causes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Francis Okaridi Ojuma v Patriotic Guards Limited [2015] KEELRC 668 (KLR)", Case Analysis (2015). Cause No. 41 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/668/eng@2015-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.