Thomas Bacha Ndungu v Kiu Construction Company Limited [2020] eKLR Case Summary

Court
Employment and Labour Relations Court at Nairobi
Category
Civil
Judge(s)
Hon. Lady Justice Maureen Onyango
Judgment Date
October 09, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Thomas Bacha Ndungu v Kiu Construction Company Limited [2020] eKLR, highlighting key legal principles and implications of the judgment in construction law.

Case Brief: Thomas Bacha Ndungu v Kiu Construction Company Limited [2020] eKLR

1. Case Information:
- Name of the Case: Thomas Bacha Ndungu v. Kiu Construction Company Limited
- Case Number: Cause No. 1740 of 2015
- Court: Employment and Labour Relations Court at Nairobi
- Date Delivered: 9th October 2020
- Category of Law: Civil
- Judge(s): Hon. Lady Justice Maureen Onyango
- Country: Kenya

2. Questions Presented:
The court must resolve the following central legal issues:
1. Whether the Claimant's indefinite suspension amounted to termination of employment.
2. Whether there were valid reasons for the summary dismissal of the Claimant.
3. Whether due process was followed in the dismissal.
4. Whether the Claimant is entitled to the reliefs sought.

3. Facts of the Case:
The Claimant, Thomas Bacha Ndungu, was employed by the Respondent, Kiu Construction Company Limited, as a driver since November 2010, earning a monthly salary of Kshs. 24,879. He was suspended indefinitely on 6th July 2015, which he interpreted as termination due to the Respondent's lack of response to his inquiries regarding the status of his employment. The Claimant subsequently filed a claim seeking various reliefs, including unpaid salary, leave, damages for unlawful dismissal, gratuity, and overtime pay.

The Respondent denied terminating the Claimant’s employment, alleging that he had absconded duty and asserting that the Claimant's case should be dismissed as it disclosed no reasonable cause of action. The Respondent claimed that the Claimant was suspended for gross misconduct and was not entitled to any pay during the suspension period.

4. Procedural History:
The Claimant filed his claim in October 2015, and the Respondent responded denying the allegations and asserting that the Claimant had absconded duty. Both parties presented their evidence during the trial, with the Claimant testifying about his work conditions and the circumstances of his suspension, while the Respondent's HR Manager testified in favor of the Respondent's position. The Claimant's and Respondent's submissions were made regarding the legality of the termination and the claims for relief.

5. Analysis:
- Rules: The court considered relevant provisions of the Employment Act, particularly sections 41 (due process for termination), 43 (validity of reasons for termination), and 45 (unfair termination).

- Case Law: The court referenced several previous cases, including *Anthony Mkala Chitavi v Malindi Water and Sewerage Company Limited* [2013] eKLR, which emphasized the employer's obligation to hear an employee's representations before termination. The court also cited *Walter Ogal Anuro v Teachers Service Commission* [2013] eKLR regarding the necessity of both substantive justification and procedural fairness for termination.

- Application: The court found that the Claimant's indefinite suspension without communication constituted a termination. It held that while the Claimant had admitted to being absent from work, the Respondent failed to follow due process as required by the Employment Act. The Respondent did not provide adequate evidence to substantiate its claims regarding the Claimant's absenteeism or the payment of his dues, leading to the conclusion that the dismissal was unfair.

6. Conclusion:
The court ruled in favor of the Claimant, finding that the Respondent had unfairly terminated his employment. The Claimant was awarded Kshs. 451,772.26, which included one month's salary in lieu of notice, compensation for unlawful dismissal, unpaid leave, and overtime pay. The Respondent was also ordered to issue a certificate of service to the Claimant.

7. Dissent:
There was no dissenting opinion noted in this case.

8. Summary:
The court's decision highlighted the importance of adhering to due process in employment terminations, underscoring the obligations of employers under the Employment Act. The ruling serves as a precedent for similar cases regarding the rights of employees in Kenya, particularly concerning termination procedures and the necessity for employers to provide clear communication and evidence when dismissing employees.

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