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ELRCPartially AllowedCause No 583 of 2016· [2023] KEELRC 1186 (KLR)

Apondi v Timberland Construction Company (Cause 583 of 2016) [2023] KEELRC 1186 (KLR)

Employment and Labour Relations Court
18 May 2023
ANAgnes Kitiku Nzei
1,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court awarded a casually dismissed worker Ksh 192,000 because his employer skipped the hearing and had no proof of a fair dismissal process.

What this practically means

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Executive summary

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The Claimant, employed as a helper at ksh. 500 per day, sued the Respondent alleging verbal termination of his services on 6th January 2016 without notice, reasons or a fair hearing, contrary to sections 35 and 41 of the Employment Act. He sought notice pay, four years' leave pay, gratuity, compensation for unfair termination, costs and a certificate of service. The Respondent admitted employing him but as a casual, and pleaded that notice pay, leave pay and NSSF contributions were duly paid or remitted. The Respondent failed to attend the hearing; its case was closed without evidence, leaving the Claimant's evidence unchallenged. Relying on Trust Bank Ltd v Paramount Universal Bank Ltd and Chrispine Otieno Caleb v Attorney General, the Court held that uncontroverted evidence stands unchallenged. The NHIF and NSSF records proved continuous employment on a balance of probability, and the termination was found unfair, the Respondent not having complied with section 41. The Court awarded the equivalent of nine months' salary (ksh. 135,000) as compensation for unfair termination, one month's salary in lieu of notice (ksh. 15,000) under section 35(1)(c), and ksh. 42,000 for unpaid leave under section 28(1)(a), totalling ksh. 192,000, subject to statutory deductions under section 49(2). Gratuity was disallowed because the Claimant was an NSSF member under section 35(6)(d). A certificate of service was ordered within thirty days under section 51, with costs and interest at court rates awarded to the Claimant. Judgment delivered at Mombasa on 18th May 2023 by Agnes Kitiku Nzei, J.

Key legal issues

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01

Whether the Claimant was continuously employed by the Respondent

Holding

The Court found continuous employment proved on a balance of probability, corroborated by NHIF and NSSF remittance records

Reasoning

The Claimant produced an NHIF Member Data Summary showing the Respondent remitted his contributions for 2013, 2014 and 2015, and an NSSF statement showing contributions for part of 2013, 2014 and 2015. The Respondent, having failed to attend court or call evidence, did not controvert or rebut this evidence. The Claimant's testimony that he worked continuously from Monday to Saturday therefore stood unchallenged and proved employment.

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02

Whether the termination of the Claimant's employment was unfair

Holding

The verbal termination without reasons or disciplinary proceedings was unfair

Reasoning

The Claimant's unchallenged evidence was that his services were terminated verbally on 6/1/2016 without any reasons and without any disciplinary proceedings. The Respondent did not demonstrate compliance with section 41 of the Employment Act or adherence to justice and equity. On the uncontroverted material, the Court found the termination unfair.

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03

Entitlement to compensation and terminal dues

Holding

Nine months' salary awarded as compensation for unfair termination; one month's notice pay allowed under section 35(1)(c); leave pay of ksh. 42,000 awarded; gratuity disallowed due to NSSF membership; certificate of service ordered

Reasoning

Having found unfair termination, the Court exercised discretion under section 49 to award nine months' salary based on the uncontradicted monthly wage of ksh. 15,000. Notice pay was allowed under section 35(1)(c). Under section 28(1)(a) the Claimant was entitled to twenty-one days' leave per year of service, computed at 15,000/30X21X4. Section 35(6)(d) barred gratuity for an NSSF member.

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Legal principles established

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  • Where a party fails to adduce evidence in support of its case, its pleadings remain mere statements of fact and the opposing party's uncontroverted evidence stands unchallenged.
  • Termination of employment without reasons and without disciplinary proceedings offends section 41 of the Employment Act and is unfair.

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for compensation for unfair termination of ksh. 135,000, one month salary in lieu of notice of ksh. 15,000, and unpaid leave days of ksh. 42,000, total ksh. 192,000
  2. 2.The awarded sum is subject to statutory deductions pursuant to section 49(2) of the Employment Act
  3. 3.The Respondent shall issue the Claimant with a Certificate of Service within thirty days of the judgment pursuant to Section 51 of the Employment Act
  4. 4.The Claimant is awarded costs of the suit and interest at Court rates

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 35(1)(c)
  • Employment Actsection 35(6)(d)
  • Employment Actsection 28(1)(a)
  • Employment Actsection 49(2)
  • Employment Actsection 51

Cases cited (2)

  • Trust Bank Limited -vs- Paramount Universal Bank Limited & 2 Others
    Nairobi [Milimani] HCCC NO. 1243 OF 2021
  • Chrispine Otieno Caleb -vs- Attorney General
    [2014] eKLR
Jurisdiction invoked
Employment Act, 2007 (original employment and labour relations jurisdiction)

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, "Apondi v Timberland Construction Company (Cause 583 of 2016) [2023] KEELRC 1186 (KLR)", Case Analysis (2023). Cause No 583 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1186/eng@2023-05-18

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