REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU ELRC CAUSE NO. E084 OF 2022 DOMINIC OMIDO KISIKWA CLAIMANT v JAMES KINUTHIA T/A LEMAPHEN HARDWARE RESPONDENT JUDGMENT 1. Dominic Omido Kisikwa (Claimant) sued James Kinuthia (Respondent) vide a Memorandum of Claim dated 01/03/2022 alleging unfair termination of employment and seeking payment of pay in lieu of notice, overtime, 12 months compensation under section 49(1) (c) of the Employment Act, underpayments, off duties, public holidays, outstanding leave, salary for 15 days for November 2021, Certificate of Service and costs.
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republicofkenyaintheemploymentandlabourrelationscourtatnakuruelrccausenoe084of2022dominicomidokisikwaclai mantvjameskimuthiatalemaphenhardwarerespondentjudgment 2. The Respondent filed an Answer to the Claim on 08/12/2022 alleging that the Claimant’s employment was not unfairly terminated but that he deserted employment upon being accused of theft. He further denied all the allegations of unfair labour practices levelled against him. 3. The Cause was heard on 26/03/2024 and the parties then filed their written submissions. The Court has considered the pleadings, evidence and submissions and identified the issues for determination as whether the Claimant deserted duty or had his employment terminated unfairly and appropriate remedies including entitlements accruing to the Claimant because of the employment relationship. Desertion or unfair termination of employment 4. The Respondent contended that the Claimant deserted employment from the time when they were doing stock-taking due to theft that had been detected during the stock-taking exercise. He insisted that the Claimant was employed as a general worker. The respondent witness RW1, Leah Kinuthia, produced 2 letters, the first one dated 10/05/2022 inviting the claimant to a disciplinary hearing and the other one dated 26/05/2022 dismissing the claimant for failing to attend the disciplinary hearing. Page 2 of 7
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republicofkenyaintheemploymentandlabourrelationscourtatnakuruelrccausenoe084of2022dominicomidokisikwaclai mantvjameskimuthiatalemaphenhardwarerespondentjudgment 5. According to the claimant, however, he was terminated verbally on 15/11/2021 at 7.00am when he had just reported on duty. That he was informed that the respondent had decided to terminate his services and that he was to return home till when he might be called should his services be needed, and that he has never been called again by the respondent since that date of termination. He denied having been accused of any theft. He insisted that he was employed as a sales manager. He denied having been provided with a house or a means of transport as alleged by nth respondent. 6. I find discrepancies in the dates of the letters produced by the respondent. I thus find the claimant’s testimony more probable. It was not confirmed that the claimant received any of the letters or any attempt to have him served with the hearing notice as alleged. I thus find the termination herein to have been unfair both substantively and procedurally. Appropriate remedies/entitlements 7. In the employment relationship, some entitlements accrue to the employee and fall due despite and in spite of the manner of separation. The respondent did not produce any contract of employment to confirm the employment status of the clamant. Thus this court will go with the evidence of the claimant and find that he was employment as a sales man/ manager and not a general worker as Page 3 of 7
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republicofkenyaintheemploymentandlabourrelationscourtatnakuruelrccausenoe084of2022dominicomidokisikwaclai mantvjameskimuthiatalemaphenhardwarerespondentjudgment alleged by the respondent. In considering the entitlements, the court will treat the claimant herein as a sales manager/ man. Pay in lieu of Notice 8. The Claimant would be entitled to 1 month pay in lieu of notice in consideration that the Court has found his dismissal unfair. The Claimant’s basic wage as a salesman/ manager ought to have been Kshs. 23.731.80 which I hereby award under this head. Overtime 9. The Claimant’s evidence that he used to report to work at 7.00am and leave at 7.15pm was not challenged or controverted. The Respondent’s witness merely stated that there was no overtime. The Respondent was on notice that he was facing a claim for overtime. Being the employer, he should have produced the relevant employment records on working hours but it did not. The Court would therefore find for the Claimant in the sum of Kshs 1,711,306.85 as pleaded. The Court would once again exhort practitioners not to take casually the production of employment records when confronted with this type of claims. Leave Page 4 of 7
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republicofkenyaintheemploymentandlabourrelationscourtatnakuruelrccausenoe084of2022dominicomidokisikwaclai mantvjameskimuthiatalemaphenhardwarerespondentjudgment 10.The Respondent’s witness did not deny that the Claimant did not go on leave for the entire period when he was in employment. There was however no evidence that the Claimant applied for leave. I thus do hereby dismiss this claim. Compensation 11.This is one of the primary remedies for unfair termination. However, it is a discretionary remedy. I award the claimant 12 months compensation given the arbitrary manner in which he was terminated. That amounts to Kshs. 327,499.20 Other awards 12.I further award him Kshs. 1,095,669.15 for off duties, Kshs. 264,505.20 for public holidays, Kshs. 1,241,818.60 for underpayments as a sales man/ manager and Kshs. 19,414.00 being salary for 17 days worked in November 2021. The same are as tabulated in the Memorandum of Claim. Conclusion and Orders 13.The Court finds and holds that the Respondent has failed to prove that the Claimant stole from him, or that he was properly and/or sufficiently notified of Page 5 of 7
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republicofkenyaintheemploymentandlabourrelationscourtatnakuruelrccausenoe084of2022dominicomidokisikwaclai mantvjameskimuthiatalemaphenhardwarerespondentjudgment the disciplinary hearing and/or he deserted and so his dismissal was unfair and awards the Claimant and orders the Respondent to pay him i. 1 month pay in lieu of notice Kshs. 23,731.80 ii. Compensation Kshs. 327,499.20 iii. Underpayments Kshs 1,241,818.60 iv. Overtime Kshs 1,711,306.85 v. Off duties Kshs. 1,095,669.15 vi. Public holidays Kshs. 264,505.20 vii. Salary for 17 days for November 2021Kshs. 19,414.00 TOTAL Kshs 4,683,944.80 14.The Respondent to issue the claimant with a certificate of service and the costs of this suit. Delivered, dated and signed virtually in Nakuru on this…03rd …. day of … September…2026 ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE Page 6 of 7
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republicofkenyaintheemploymentandlabourrelationscourtatnakuruelrccausenoe084of2022dominicomidokisikwaclai mantvjameskimuthiatalemaphenhardwarerespondentjudgment Appearances For Claimant: Kerubo For Respondent: Bett Court Assistant: Mugambi Page 7 of 7
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