Case ID:166818

Pascal Lazarus Ochudo v Zap Car Hire & Tours Ltd [2020] eKLR

Case Metadata

Case Number:

Cause 1649 of 2016

Parties:

Pascal Lazarus Ochudo v Zap Car Hire & Tours Ltd

Date Delivered:

18 Nov 2020

Case Class:

Civil

Court:

Employment and Labour Relations Court at Nairobi

Case Action:

Judgment

Judge(s):

Radido Stephen Okiyo

Citation:

Pascal Lazarus Ochudo v Zap Car Hire & Tours Ltd [2020] eKLR

Court Division:

Employment and Labour Relations

County:

Nairobi

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 EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 1649 OF 2016

PASCAL LAZARUS OCHUDO..............................CLAIMANT

v

ZAP CAR HIRE & TOURS LTD.......................RESPONDENT

JUDGMENT

1. Pascal Lazarus Ochudo (Claimant) sued Zap Car Hire and Tours Ltd on 17 August 2016 alleging unfair termination of employment and breach of contract.

2. According to an affidavit of service filed in Court on 24 July 2017, the Respondent was served with Notice of Summons and Memorandum of Claim on 5 September 2016 and the service was acknowledged by one Zohaib.

3. Despite the service, the Respondent did not enter Appearance and/or a Response.

4. On 19 June 2018, the Court directed that the Cause proceeds to formal proof.

5. When the Cause was called out for hearing on 23 September 2020 and because of the Covid-19 public health pandemic, the Court ordered the Claimant to file an affidavit containing his evidence.

6. The Claimant filed the affidavit on 7 October 2020 and submissions on 8 October 2020.

7. The Court has considered the affidavit and the submissions.

Unfair termination of employment

8. The Claimant was employed by the Respondent as a driver around 24 September 2013.

9. The Claimant’s evidence that he was dismissed on 15 July 2016 without a hearing remains unrebutted. The decision was procedurally unfair.

10. The reason for the dismissal, the Claimant stated was that he had left behind a staff member he was meant to transport to someplace.

11. Since the Respondent did not participate in the proceedings to discharge the burden of proving the fairness and validity of the reasons, the Court can only conclude that the dismissal of the Claimant was also substantively unfair.

Compensation and Salary in lieu of notice

12. The Claimant served the Respondent for about 4 years and in consideration of the length of service, the Court will award the equivalent of 4-months gross wages as compensation (gross salary was Kshs 16,823/-).

13. Because the Claimant was not given the notice envisaged by section 35(1)(c) of the Employment Act, 2007, the Court will allow the equivalent of 1-month salary in lieu of notice.

Breach of contract

Accrued leave

14. The Claimant did not tender any evidence on this head of the claim. Relief is declined.

July 2016 salary

15. Although praying for Kshs 16,823/- on account of July 2016 salary the Claimant did not lead any evidence thereto in the affidavit. Relief is declined.

Certificate of Service

16. A certificate of service is a statutory right and the Respondent should issue one to the Claimant within 21 days.

Conclusion and Orders

17. The Court finds and declares that the dismissal of the Claimant was unfair and awards him

(a) Compensation Kshs 67,292/-

(b) Salary in lieu of notice Kshs 16,823/-

TOTAL

Kshs 84,115/-

18. Respondent to issue a certificate of service within 21 days.

19. Claimant to have costs and interest from the date of judgment.

Delivered through Microsoft teams, dated and signed in Kisumu on this 18

th

day of November 2020.

Radido Stephen

Judge

Appearances

For Claimant Mr. Jaoko instructed by Achola Jaoko & Co. Advocates

Respondent did not participate

Court Assistant Judy Maina