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ELRCPartially AllowedNot stated in the judgment as provided· [2016] KEELRC 1705 (KLR)

Kiptarus Kipkoskei Torus v Ol-Suswa Farm Ltd [2016] KEELRC 1705 (KLR)

Employment and Labour Relations Court
12 February 2016
695 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 security guard's dismissal unfair, awarding him Kshs 34,650, but refused severance pay because he was never declared redundant.

What this practically means

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Executive summary

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Kiptarus Kipkosgei Torus (Claimant) sued Ol-Suswa Farm Ltd (Respondent) before the Employment and Labour Relations Court at Nakuru, stating the issue in dispute as unfair termination. He sought wages for June 2013, 8 days wages for July 2013, one month pay in lieu of notice, 21 days annual leave, 32 rest days, 10 public holidays, underpayment of wages, severance pay and 12 months wages as compensation, totalling Kshs 92,400/-. The Memorandum of Claim was served, an advocate filed a Notice of Appointment for the Respondent, but no Response was filed and the Respondent was unrepresented at the hearing. The Claimant testified that he was employed as a security guard on 4 May 2012 and on 9 July 2013 was told by a Manager, on instructions from the owner, that his services were no longer needed, without reasons given. At hearing, the Claimant abandoned the head of underpayments. The Court found the facts and testimony unchallenged and uncontroverted and held the dismissal unfair. Severance pay was refused because no redundancy was shown. Compensation under section 49(1)(c) of the Employment Act, 2007, being discretionary, was assessed at 2 months wages in view of about one year of service, rather than the 12 months sought. Other contractual entitlements were uncontested and awarded as pleaded, totalling Kshs 34,650/-. The Court ordered the Respondent to issue a certificate of service within 7 days and awarded the Claimant costs of Kshs 7,000/-. Judgment was delivered in Nakuru on 12 February 2016 by Radido Stephen, Judge.

Key legal issues

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01

Whether the dismissal was unfair

Holding

The dismissal was unfair; the facts as pleaded and the Claimant's testimony were unchallenged and uncontroverted

Reasoning

The Respondent filed no Response to the Claim and did not attend the hearing. The Claimant testified on oath that he was employed as a security guard on 4 May 2012 and terminated on 9 July 2013 without reasons. With the facts and testimony unchallenged, the Court accepted them and found the dismissal unfair.

p. 2
02

Severance pay

Holding

Severance pay refused because no redundancy was shown

Reasoning

Severance pay is tied to redundancy under the Employment Act. The Claimant gave no evidence that his termination was on account of redundancy, so he was not entitled to severance pay as a matter of law.

p. 2
03

Compensation under section 49(1)(c) of the Employment Act, 2007

Holding

Awarded the equivalent of 2 months wages instead of the 12 months sought

Reasoning

Compensation is discretionary. The Court considered that the Claimant served for about 1 year and, weighing that length of service, awarded 2 months wages as compensation rather than the 12 months claimed.

p. 2

Legal principles established

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  • A claimant is not entitled to severance pay as a matter of law unless declared redundant
  • Compensation under section 49(1)(c) of the Employment Act, 2007 is a discretionary remedy to be assessed with regard to length of service

Court orders

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  1. 1.The Court finds and holds that the dismissal of the Claimant was unfair
  2. 2.Award to the Claimant as pleaded: wages for June 2013 Kshs 5,500; wages for July 2013 Kshs 1,467; 1 month pay in lieu of notice Kshs 5,500; 21 days annual leave Kshs 4,217; 32 rest days Kshs 5,133; 10 public holidays Kshs 1,833; 2 months wages as compensation Kshs 11,500; TOTAL Kshs 34,650/-
  3. 3.The Respondent should issue a certificate of service within 7 days
  4. 4.Claimant to have costs of Kshs. 7,000/-

Authorities

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Legislation

  • Employment Actsection 49(1)(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over an issue in dispute of unfair termination (Employment Act, 2007)

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, "Kiptarus Kipkoskei Torus v Ol-Suswa Farm Ltd [2016] KEELRC 1705 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1705/eng@2016-02-12

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