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|Case Number:||Cause 127 of 2013|
|Parties:||Irene Chepngeno v Hi-Tech Opticians|
|Date Delivered:||20 Dec 2013|
|Court:||Employment and Labour Relations Court at Nakuru|
|Citation:||Irene Chepngeno v Hi-Tech Opticians  eKLR|
|Court Division:||Industrial Court|
|History Advocates:||Both Parties Represented|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 127 OF 2013
(BEFORE HON. JUSTICE BYRAM ONGAYA ON FRIDAY 20TH DECEMBER, 2013)
The Claimant Irene Chepngeno filed the memorandum of claim on 13.09.2011 through Gordon Ogolla & Associates. The claimant prayed for:
The respondent Hi-Tech Opticians filed the memorandum of response on 8.03.2012 through Obura Mbeche & Company Advocates. The respondent prayed for the suit to be dismissed; a finding that the claimant had absconded duty; costs and interest of the suit; and any other relief that the honourable court may deem fit to grant. The claimant filed the memorandum of response to the respondent’s response on 29.05.2013.
The case was heard on 3.10.2013. The claimant gave testimony to support her case. The respondent called three witnesses namely Jayaram Ankala , the respondent’s optometrist (RW1); Lilian Njeri Ndungu, the respondent’s shop attendant (RW2); and Nangesh Ramajapua, also the respondent’s Optometrist (RW3).
The claimant was employed by the respondent on 6.9.2007 orally and without a letter of appointment. She testified that she was a sales lady dispensing and selling spectacles. Her monthly salary increased from Kshs.6,000.00 since 6.9.2007 to Kshs.8,000.00 by around January, 2009 to Kshs.9,000.00. Her evidence was that throughout her service, she was not accorded annual leave or paid in lieu of the annual leave. On 14.04.2009 to 1.6.2009, she took a maternity leave
The claimant testified that on 14.05.2011, she received the transfer letter being exhibit II on the memorandum of claim. She did not proceed on the transfer because the respondent failed to facilitate her in terms of transport and an allowance to settle down. She was only paid Kshs.4,000.00 which she treated as her pay for the 14 days worked in May 2011. She continued to report at the Nakuru office because RW1 promised he was going to provide the facilitation for transfer but, she was not assigned any duties. She testified that her last date to report was on 4.06.2011 after which she received the letter dated 28.06.2011 being exhibit VIII on the memorandum of claim. The letter conveyed that the claimant’s explanation for not proceeding on transfer on account of lack of facilitation was not acceptable, RW1 had given instructions to RW3 that the claimant should not work and any employee could be transferred and the issue could not be discussed with the claimant’s husband. The letter was attached to an email and sent at a time RW1 was out of Kenya. The claimant later received the letter exhibit IX on the memorandum of claim directing her to get her own transport and report as transferred on or before 7.07.2011. Her testimony was that she did not have money to enable her report to Eldoret as transferred. The agreed facilitation was Kshs.5,000.00 before travel and a further Kshs.5,000.00 after travel and the respondent failed to honour the arrangement. She stopped reporting at the Nakuru office and failed to report as transferred. She further testified as follows:
RW1 testified that he established the respondent company in 2005 as one of the directors. The claimant was paid commission and a salary as was agreed between the parties. Commission was introduced in October 2007, 2 months after her appointment and training. He testified that as per the pay documents the claimant could earn up to Khs.12,000.00 and sometimes Kshs.16,000.00 per month and she was a sales assistant. RW1 stated that the transfer to Eldoret was normal and advantageous to customers because the claimant was fluent in the customers’ Kalenjin language. In contradictory testimony, RW1 stated the transfer was on disciplinary grounds in view of the prior misconduct by the claimant involving rendering services without job card therefore leading to losses of revenue; the transfer was in lieu of punishment. RW1 testified that the claimant never asked for pay during the maternity leave and she voluntarily reported back on duty before lapsing of her maternity leave. He testified that he personally handled late customers as sales ladies left work at 6.00 pm.
RW2 confirmed that as a shop attendant the respondent paid both commissions and fixed salaries and they left for the day’s work at 6.00 pm. RW3 confirmed while the RW1 was away he stopped the claimant from reporting on duty.
The main issue for determination in this suit is whether the claimant is entitled to the remedies as prayed for. The court makes findings as follows:
In conclusion, judgment is entered for the claimant against the respondent for:
Signed, dated and delivered in court at Nakuru this Friday, 20th December, 2013.