1.The Claimant sued the Respondent vide a Memorandum of claim dated 31st July 2017 and pleaded:-a.that the Claimant was employed by the Respondent on 20th September 2009 in the position of IT Hardware Technician, via a letter of employment dated 19th March 2009; and worked for six (6) years upto February 2016.b.that on 8th February 2016, the Claimant requested, in writing for an emergency leave to enable him to visit his late mother who was at the time ailing and admitted in hospital, which permission was duly granted.c.that the Claimant reported back on 15th February 2016 and was served with a Notice to show cause why disciplinary action could not be taken against him for failing to attend duty for the days he was away visiting his sick mother.d.that while the Claimant was drafting his response to the notice to show cause, he was served with a summary dismissal letter dated 12th February 2016.e.that on 18th February, the Claimant was issued with a tabulation of his dues, and that although he was advised that the tabulated dues would be paid in thirty (30) days, no payment was made.f.that the Respondent had prior and malicious intention to dismiss the Claimant unfairly and only used the emergency leave as an excuse.g.that the Respondent’s actions were unlawful and in breach of both the Claimant’s contract of employment and the Employment Act 2007.h.that termination of the Claimant’s employment was wrongful and unfair.
2.The Claimant claimed: -a.Salary for days worked in February 2016…………..ksh. 26,000b.Three months salary in lieu of notice……………….ksh. 195,000c.Twelve months’ salary compensation……………....ksh.780,000d.Leave days not taken (145.25 days)……….….ksh. 314,708.33e.Unpaid NSSF remittances (400x9)…………………..….ksh. 7,600f.Certificate of Service
3.The Claimant further prayed for a declaration that termination of his employment was unfair and unlawful. He also prayed for costs of the suit and interest.
4.Along with the Memorandum of Claim that was filed in Court on 1st August 2017, the Claimant also filed his recorded witness statement and a list of evidential documents, both dated 31st August 2016. Documents listed on the said list of documents included an offer of employment letter dated 19th March 2009, the Claimant’s payslip for the month of December 2015, emergency leave application letter dated 8th February 2016, terminal benefits (tabulation) letter by the Respondent dated 18th February 2016, a show cause letter dated 11th February 2016, summary dismissal letter dated 12th February 2016, clearance form dated 18th February 2016, the Claimant’s NSSF statement of account dated 24th May 2017 and a demand letter dated 27th May 2017.
5.The Respondent entered appearance on 28th September 2017 and subsequently filed a memorandum of Response on 6th July 2018; denying the Claimant’s claim.
6.Further, the Respondent filed a recorded witness statement by one Kennedy Ngei, dated 2nd July 2018, and a supplementary statement by one Anderson Muturi Mugambi dated 13th December 2019.
7.On 17th January 2022, this Court allowed an application (dated 26th November 2021) by Counsel then on record for the Respondent (Bosire & Partners Advocates) seeking leave to cease acting for the Respondent. The suit was then fixed for hearing on 12th May 2022 and the Claimant was directed to serve the Respondent with a hearing notice.
8.When the suit came up for hearing on 12th May 2022, the Respondent did not attend Court, though shown to have been served with a hearing notice on 18th January 2022 and an affidavit of service duly filed. Hearing proceeded. The Claimant adopted his recorded and filed witness statement as his testimony and produced in evidence the documents listed on his list of documents referred to at paragraph 4 of this judgment. The Claimant further testified that he was not invited for any disciplinary hearing before termination. He asked the Court to enter judgment in his favour as prayed in his memorandum of claim. He closed his case. The Respondent’s case was also marked as closed without any evidence being called.
9.The Claimant’s evidence was not controverted and/or rebutted as the Respondent did not tender any evidence in rebuttal thereof. It was held in the case of Trust Bank Limited -vs- Paramount Universal Bank Limited & 2 Others eKLR, as follows:
10.The two issues which emerge for determination are as follows:-a.whether termination of the Claimant’s employment by the Respondent was unfair.b.whether the Claimant is entitled to the reliefs sought.
11.On the first issue, the Claimant pleaded and testified that termination of his employment was unlawful and unfair as the Respondent acted in breach of the Claimant’s contract and provisions of the Employment Act. It was the Claimant’s evidence that he applied for an emergency leave on 8th February 2016 in order to visit his ailing and hospitalized mother, which leave was granted but on returning back to work on 15th February 2016, he was served with a show cause letter dated 11th February 2016.
12.The show cause letter dated 11th February 2016 and shown to have been received by the Claimant on 15th February 2016 was produced in evidence by the Claimant. The same required the Claimant to show cause within twenty-four hours. The summary dismissal letter, dated 12th February 2016, is shown to have been received by the Claimant on 15th February 2016. Both the show cause letter and the summary dismissal letter were served on the clamant on the same date. The Claimant testified that he was not invited for a disciplinary hearing before termination of his employment.
13.Section 41 of the Employment Act provides in mandatory terms as follows:-(1)Subject to Section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.(2)Notwithstanding any other provision of this part, the employer shall, before terminating the employment of an employee, or summarily dismissing an employee under Section 44(3) or (4) hear and consider any representations which the employee may on the ground of misconduct or poor performance, and the person, if any chosen by the employee within subsection (1) make.”
14.Failure by the Respondent to comply with the foregoing mandatory statutory provisions rendered termination of the Claimant’s employment procedurally unfair. I so find, declare and hold.
15.The Court of Appeal held as follows in the case of Kenfright [e.a] Limited -vs- Benson K. Nguti eKLR:-
16.Before delving into the second issue, I must address the issue of the Claimant’s salary at the time of termination of the Claimant’s employment. The Claimant produced in evidence his payslip for the month of December 2015. It is indicated on the said payslip that the Claimant’s gross monthly salary was ksh. 65,000. The Claimant’s employment was terminated less than two months from the date of the said payslip. The Court was not told that any changes to the Claimant’s salary had been made as at 20th February 2016 when the Claimant’s employment was terminated.
17.Having already found that termination of the Claimant’s employment was unfair, I award the Claimant the equivalent of nine months’ salary being compensation for unfair termination of employment, that is ksh. 65,000x9 = ksh.585,000. I have taken into account the circumstances in which termination of the Claimant’s employment took place; which are well captured in this judgment.
18.On salary for the days worked in February 2016, the Claimant prayed for ksh. 26,000. This amount accords with the Respondent’s calculations on that particular item as demonstrated in the Respondent’s tabulation of the Claimant’s dues dated 18th February 2016, which the Claimant produced in evidence. I award the Claimant the said sum of ksh., 26,000.
19.The Claimant prayed for three months’ salary in lieu of notice. His contract of employment, however, provides for one month’s salary in lieu of notice. This contractual term basically accords with Section 35 (c) of the Employment Act 2007. I award the Claimant one month salary being payment in lieu of notice, which is ksh. 65,000.
20.Further, the Claimant claimed ksh. 314,708.33 being payment for 145.25 untaken (accrued) leave days. This number of accrued leave days and claim thereon accords with the number of earned leave days and payment due thereon as stated in the Respondent’s tabulation of the Claimant’s dues dated 18th February 2016; which the Claimant produced in evidence as already stated in this judgment. I award the Claimant the said sum of ksh. 314,708.33
21.The claim for unpaid/unremitted NSSF dues is declined. Once deducted from an employee’s earnings, statutory deductions cease to be an employee’s property and/or entitlement. They become property and entitlement of the statutory body to which such deductions are supposed to be remitted. Such statutory bodies, including the NSSF, have statutory prosecutorial powers and are capable of pursuing employers for recovery of any deducted but unremitted amounts of money.
22.In sum, judgment is hereby entered for the Claimant against the Respondent for:-a.nine months’ salary being compensation for unfair termination of employment …………………………………………..ksh. 585,000b.salary for days worked in February 2016………...ksh. 26,000c.One month salary in lieu of notice……………..…...ksh. 65,000d.Payment for 145. 25 untaken/accruedleave days……………………………………ksh. 314,708.33Total ksh.990,708.33
23.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act.
24.The Respondent shall within thirty days issue a Certificate of Service to the Claimant pursuant to Section 51 of the Employment Act 2007.
25.The Claimant is awarded costs of the suit and interest at Court rates.