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ELRCPartially AllowedCause (number not stated in judgment; claim filed 22 August 2014)· [2016] KEELRC 1703 (KLR)

Alexander Chesamit v Ol-Suswa Farm Ltd [2016] KEELRC 1703 (KLR)

Employment and Labour Relations Court
12 February 2016
635 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 ruled a guard's firing unfair because the employer never explained why, awarding him pay and a service certificate.

What this practically means

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Executive summary

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The Claimant, employed as a guard by the Respondent from March 2012 at a monthly salary of Kshs 4,917/-, sued for unfair termination after a manager told him on 9 July 2013 that his services were no longer needed, without reasons. He sought wages for June and July 2013, one month's pay in lieu of notice, 21 days annual leave, 32 rest days, 10 public holidays, underpayment, severance pay and 12 months' compensation, totalling Kshs 92,400/-. The Respondent filed an appearance through Mburu F.I. & Co. Advocates but no Response. At the hearing on 28 October 2015 the Respondent was not represented, but since its representative had taken the hearing date, the Cause proceeded undefended. The Claimant's sworn testimony went unchallenged and uncontroverted, and the Court found the termination unfair. Counsel abandoned the underpayment claim. Severance pay was refused because the Claimant did not prove he was declared redundant. Under section 49(1)(c) of the Employment Act, 2007, compensation being discretionary and the service period about one year, the Court awarded two months' wages (Kshs 9,834/-) instead of twelve months. The uncontested heads were awarded as pleaded, bringing the total award to Kshs 28,877/-. The Court also ordered the Respondent to issue a Certificate of Service within 7 days, as of right, and awarded the Claimant costs of Kshs 7,000/-.

Key legal issues

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01

Unfair termination

Holding

Termination was unfair; the Claimant was not given reasons for termination and the facts went unchallenged.

Reasoning

The Claimant testified that he was told his services were no longer needed without reasons, and the Respondent, though served and represented at the taking of hearing dates, filed no Response and did not attend the hearing. The pleaded facts and sworn testimony therefore stood uncontroverted, satisfying the Court that the termination was unfair.

p. 1
02

Severance pay

Holding

Not awarded because redundancy was not established.

Reasoning

Severance pay is a remedy tied to redundancy. The Claimant neither pleaded nor proved that he had been declared redundant; the termination was a summary dismissal of services without reasons, so the head of claim for severance pay failed.

p. 2
03

Quantum of compensation under section 49(1)(c)

Holding

Two months' wages awarded instead of twelve months sought.

Reasoning

Compensation is discretionary. The Court considered the Claimant's length of service of about one year as the relevant factor and exercised its discretion to award the equivalent of two months' wages, being Kshs 9,834/-, instead of the twelve months' compensation claimed.

p. 2
04

Uncontested monetary entitlements

Holding

Awarded as pleaded.

Reasoning

The heads of claim for wages for June and July 2013, notice pay, annual leave, rest days and public holidays were not contested or challenged by the Respondent, which filed no Response and did not appear at the hearing; the Court therefore found for the Claimant on those heads as pleaded.

p. 2
05

Certificate of Service

Holding

The Claimant is entitled to a Certificate of Service as of right.

Reasoning

The Court held the entitlement to a Certificate of Service is a right, not discretionary, and directed the Respondent to issue it within 7 days of the judgment.

p. 2

Legal principles established

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  • A respondent who fails to file a Response leaves the claimant's pleaded facts and testimony unchallenged and uncontroverted, on which the court may find unfair termination.
  • Severance pay is only available to an employee who has been declared redundant.
  • Compensation under section 49(1)(c) of the Employment Act, 2007 is discretionary and is scaled to length of service.

Court orders

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  1. 1.Award of wages for June 2013 of Kshs 3,000/-
  2. 2.Award of wages for July 2013 of Kshs 800/-
  3. 3.Award of 1 month pay in lieu of notice of Kshs 4,917/-
  4. 4.Award of 21 days annual leave of Kshs 3,442/-
  5. 5.Award of 32 rest days of Kshs 5,245/-
  6. 6.Award of 10 public holidays of Kshs 1,639/-
  7. 7.Award of 2 months' wages as compensation of Kshs 9,834/- (total Kshs 28,877/-)
  8. 8.Respondent to issue the Claimant a Certificate of Service within 7 days
  9. 9.Costs of Kshs 7,000/- to the Claimant

Authorities

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Legislation

  • Employment Act, 2007section 49(1)(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination dispute under the Employment Act, 2007 (section 49(1)(c) invoked for compensation)

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, "Alexander Chesamit v Ol-Suswa Farm Ltd [2016] KEELRC 1703 (KLR)", Case Analysis (2016). Cause (number not stated in judgment; claim filed 22 August 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1703/eng@2016-02-12

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