Daniel Morara Momanyi v Kisumu Water & Sewerage Co Ltd [2021] KEELRC 2189 (KLR)

The Claimant testified that the applicable procedures were not followed and that there was no disciplinary hearing. The Respondent did not lead any evidence at the hearing on 16 November 2020, so the Claimant's evidence stood uncontroverted. He thus discharged his evidentiary burden under section 47(5), while the Respondent failed to discharge its burden under sections 41, 43, 45 and 47(5) of the Employment Act. The court found the termination unfair on 9 November 2016.

Considering the length of service as a plumber of eight years, the court awarded the equivalent of 8 months' gross wages as compensation under section 49 of the Employment Act. Because no written notice was given, one month's basic salary in lieu of notice was allowed. Earned wages up to the date of separation are due as of right and the pleaded sum of Kshs 6,000/- was awarded.

Service pay was barred by NSSF membership under section 35(5) and (6), and no contractual gratuity clause was identified. The overtime claim failed because the Claimant did not give foundational evidence of when he worked overtime, disclosing only the time he finished work and not the time he reported. The accrued leave claim failed because the Claimant did not show that leave was carried forward with the Respondent's permission or that leave requests were declined, and section 28(4) circumscribes carry-forward of leave.