Benson Musyoki Muthengi v Dimamu Agencies Limited [2022] KEELRC 253 (KLR)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CAUSE NO. 2226 OF 2016 BENSON MUSYOKI MUTHENGI................................................CLAIMANT VERSUS DIMAMU AGENCIES LIMITED.............................................RESPONDENT JUDGMENT 1. The suit filed on 1st November, 2016 by the claimant is undefended and proceeded to formal proof. 2. The claimant C.W.1 adopted a witness statement dated 31 st March, 2016 as his evidence in chief. The claimant also produced a list of documents dated 10th May, 2016 as exhibits ‘1’ to ‘4’. 3. The claimant testified that he was employed by the respondent as a loader on 14 th March, 2015 earning a monthly salary of Kshs. 10,660. That he worked continuously until 24th March, 2016 when he reported to work as usual and around 12.00 noon Mr. Deepark and Mr. Ocampo asked him to leave the company for good. That the two alleged that a truck, the claimant was loading had excess goods and accused the claimant of theft. 4. That no report was made to the police. The claimant was not paid terminal benefits set out in the Statement of Claim including: (i) One-month salary in lieu of notice - Kshs 10,660.00. (ii) Payment in lieu of one year leave Kshs 8,610.00 (iii) Payment of service pay Kshs 6,150. (iv) Payment for public holidays worked Kshs 8,200.00 (v) Underpayment for one year 24,519.00 (viii) Off days Kshs 196,80.00. 5. The claimant also claims compensation for unlawful and unfair dismissal. 6. In this respect, once the claimant adduced evidence of wrongful dismissal, in terms of Section 47(5), the burden shifts to the respondent to prove in terms of Section 43(1) and (2) read with 47(5) that it had valid reason to dismiss the claimant from employment. 7. The matter being undefended, the respondent failed to discharge that onus. The Court finds that the respondent did not satisfy the requirements of Sections 36, 41, 43, and 45 of the Employment Act, in dismissing the claimant without a notice; notice to show cause and/or a hearing to defend himself. 8. The dismissal was unlawful and unfair and the claimant is entitled to compensation in terms of Section 49(1) (c) and (4) of the Act. The claimant had served one year. He was not paid terminal benefits nor compensated for the dismissal. The claimant suffered loss and damages. 9. Relying on the case of Mary Chemweno Kiptui –vs- Kenya Pipeline (2014) eKLR, the Court awards the claimant the equivalent of (3)

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