Samson Ndika Olinga v Jiku Builders Limited [2016] KEELRC 34 (KLR)

The court found the Claimant worked from 24th April 2011 to 2nd March 2012 continuously, attracting section 37 protection. Termination is regulated by sections 35, 43 and 41 of the Employment Act, requiring notice with reasons and a hearing where misconduct is alleged. On the Claimant's uncontroverted testimony, he was told there was no work, given no reasons and no notice, while his workmates remained employed. Failure to meet these procedural and substantive requirements rendered the termination unfair under section 45.

Applying the Wage Order in the Building and Construction Industry, the court computed underpayment at Kshs.2 per day over 10 months (Kshs.480), overtime at 1.5 times the daily rate for 30 excess hours (Kshs.2,823.75), 22 days' leave (Kshs.11,044), monthly house allowance of Kshs.2,277 for 10 months (Kshs.22,770) and tools allowance of Kshs.152 per month (Kshs.1,520).

Although there was no defence, the court held that a claimant must still justify claims on their merits. The Claimant did not identify which public holidays he worked, and since public holidays fall on different days each year, the claim could not be allowed in general terms.

The court noted the claim and notices to the Respondent were by K/S A.O Jacob Kenya Labour Consultant, which is not a qualified entity for purposes of the proceedings. Following its prior decisions in Timothy Munyaka v Nairobi Pacific Hotel Ltd and Mercy Kanini Lilian v Ali Ishmael Mwangi, no costs were due despite the later change to the Claimant's current advocates.