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ELRCPartially AllowedELRC Cause No. 35 of 2017· [2018] KEELRC 935 (KLR)

Daniel Ogare v Herne Limited [2018] KEELRC 935 (KLR)

Employment and Labour Relations Court of Kenya
9 October 2018
DMD. K. Njagi Marete
1,067 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an undefended employment cause before the Employment and Labour Relations Court at Kericho, consolidated as the leading case with ELRC Causes Nos. 36 to 42 of 2017. The claimant, a security guard employed on 18th July 2015 at a gross salary of Kshs. 9,000.00, alleged that his employment was terminated on grounds of redundancy on 13th December 2015 without payment of terminal dues, without a right of appeal, and without a Certificate of Service, in violation of sections 35, 41, 44, 45, 49 and 51 of the Employment Act, 2007. He claimed notice pay, overtime, leave, gratuity, pending off days, unpaid salary for 13 days, and twelve months' salary as compensation, plus a Certificate of Service, costs and interest. The respondent never entered appearance despite service. Framing three issues - whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs - the court held on the uncontroverted evidence that the termination was wrongful, unfair and unlawful, and that the claimant was entitled to relief. The court awarded one month's salary in lieu of notice (Kshs. 9,000.00), unpaid salary for 13 days (Kshs. 3,900.00) and six months' salary as compensation (Kshs. 54,000.00), totalling Kshs. 66,000.00, and ordered issuance of a Certificate of Service within 30 days. Costs were awarded to the claimant and assessed at Kshs. 100,000.00. Several heads of claim, including overtime, leave, gratuity and pending off days, were not included in the final award. Judgment was delivered on 9th October 2018 by D. K. Njagi Marete, J.

Key legal issues

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01

Wrongful, unfair and unlawful termination

Holding

The termination of the claimant's employment on grounds of redundancy was wrongful, unfair and unlawful

Reasoning

The claimant testified that his employment was terminated on grounds of redundancy on 13th December 2015 without payment of terminal dues, without a right of appeal, and without a Certificate of Service, in violation of sections 35, 41, 44, 45, 49 and 51 of the Employment Act, 2007. The respondent did not enter appearance or file a defence despite service. On the uncontroverted evidence and pleadings, the court found the termination unlawful.

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02

Entitlement to relief

Holding

A claimant who establishes unlawful termination becomes entitled to the relief sought, including pay in lieu of notice, unpaid salary and compensation under the Employment Act

Reasoning

Having succeeded on the claim of unlawful termination, the claimant was held entitled to relief. The court awarded one month's salary in lieu of notice, unpaid salary for 13 days in December 2015, and six months' salary as compensation for unlawful termination, totalling Kshs. 66,000.00, and ordered issuance of a Certificate of Service.

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Legal principles established

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  • Where a claim is undefended and evidence is adduced in support, termination found to be wrongful, unfair and unlawful entitles the claimant to the relief sought

Court orders

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  1. 1.One (1) month's salary in lieu of notice of Kshs. 9,000.00
  2. 2.Unpaid salaries for 13 days in December 2015 of Kshs. 3,900.00
  3. 3.Six (6) months' salary as compensation for unlawful termination of employment, Kshs. 54,000.00
  4. 4.Total award of Kshs. 66,000.00
  5. 5.The respondent be and is hereby ordered to issue a Certificate of Service to the claimant within 30 days of the judgment
  6. 6.The costs of the claim to be borne by the respondent
  7. 7.Costs of the claim assessed at Kshs. 100,000.00

Authorities

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Legislation

  • Employment Actsections 35, 41, 44, 45, 49 and 51
  • Employment Actsection 40(1)(g)
  • Constitution of Kenyarights of workers (as invoked in the claim)
  • Civil Procedure RulesOrder 3 Rule 2 (c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

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, "Daniel Ogare v Herne Limited [2018] KEELRC 935 (KLR)", Case Analysis (2018). ELRC Cause No. 35 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/935/eng@2018-10-09

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