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IndustrialAllowedCause 802 of 2010

King’oo & 2 others v Idhoade & another (Cause 802 of 2010) [2011] KEIC 34 (KLR)

Industrial Court of Kenya
11 May 2011
SMStewart M. MadzayoMWM.A. WarrakahPOP.M. Osero
1,103 words in judgment
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The bottom line

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A Kenyan court ruled three restaurant workers were unlawfully made redundant and awarded them over Kshs 1.7 million after the employer ignored the case.

What this practically means

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Executive summary

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This is an uncontested first-instance award of the Industrial Court at Nairobi in a claim by three cooks - Eunice Mumo King'oo, Annah Masaa Wambua and Jacinta Nthili Malyunga - against Fara Mohamed Idhoade and Wasaa Restaurant, challenging their termination on redundancy. The 1st Claimant, employed on 24th February 2003, was terminated on 26th February 2010; the 2nd and 3rd Claimants, employed on 26th May 2008, were terminated on 20th April 2010, each earning a monthly salary of Kshs.7,500/=. The Respondents never entered appearance or filed a Reply despite effective service on their Director, and were absent when the matter came up for hearing on 13th April 2011, whereupon the Court directed the hearing to proceed ex-parte. Counsel for the Claimants adopted the Memorandum of Claim signed on 5th July 2010 as his submissions. The Court observed that the Respondents had been reluctant and had refused to attend court, causing unnecessary adjournments, and held that ex-parte proceedings do not offend natural justice where a party, though notified, willfully avoids filing a Reply and attending the hearing - a view the Court fortified with the Supreme Court of India decision in Laksmic Devi Sugar Mills Ltd (1959). The Court found the terminations wrongful and illegal, declared them null and void, and awarded each Claimant one month's notice pay, pro-rata leave, severance payment, salary underpayment, twelve months' compensation for loss of employment, Sundays overtime and public holiday overtime, totalling Kshs.1,756,562/= payable within thirty days of the Award. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the Claimants' services on grounds of redundancy was unlawful
  2. 2.Whether the matter could properly proceed ex-parte in the absence of the Respondents despite service
  3. 3.What remedies and payments are due to each Claimant

Key legal issues

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01

Whether the ex-parte hearing of an uncontested claim violated the principles of natural justice

Holding

The ex-parte proceedings were proper because the Respondents were effectively served, were given repeated opportunities to file a Reply Statement and appear, and willfully failed to do so.

Reasoning

The Respondents were served with the hearing notice through their Director, yet declined or refused to attend court or send a representative, causing unnecessary adjournments and wasting the Court's time. Relying on the Supreme Court of India decision in Laksmic Devi Sugar Mills Ltd, the Court held that where a full and free opportunity to defend is given, an ex-parte inquiry is fair. A party cannot profit from its own willful default.

p. 2
02

Whether the termination of the Claimants on redundancy was unlawful

Holding

The termination of the Claimants' services was wrongful and illegal, and was declared null and void, with the full remedies claimed awarded as prayed in the Memorandum of Claim.

Reasoning

The claim was uncontested: the Respondents filed no Reply or opposition, so the Court accepted the Claimants' uncontroverted evidence of verbal contracts of employment, their dates of engagement, monthly salaries and the dates of termination, and granted the demand as prayed in the Memorandum of Claim dated 5th July, 2010.

p. 2

Legal principles established

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  • Where a party notified to file a Reply Statement and appearance avoids doing so after repeated opportunities and fails to attend the hearing, proceedings may properly be conducted ex-parte without violating natural justice.
  • A party cannot be allowed to take advantage of its own willful failure to accept service, file a Reply Statement or attend court.

Court orders

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  1. 1.Declaration that the termination of services of the three Claimants is null and void
  2. 2.Respondents to pay Eunice M. King'oo Kshs.810,702.00 (one month's notice, leave pro-rata, severance payment, salary underpayment, twelve months' compensation for loss of employment, Sundays overtime and public holiday overtime)
  3. 3.Respondents to pay Annah M. Wambua Kshs.472,930.00 under the same heads
  4. 4.Respondents to pay Jacinta N. Malyunga Kshs.472,930.00 under the same heads
  5. 5.The total sum of Kshs.1,756,562/= to be paid within thirty (30) days from the date of the Award

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SM
majority

Wrote the judgment

MW
majority
PO
majority
Jurisdiction invoked
Original jurisdiction of the Industrial Court under its employment and labour relations mandate; claim filed as Cause 802 of 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the termination of services of the Claimants, namely: (1) Eunice M. King'oo (2) Annah M. Wambua (3) Jacinta N. Malyunga be and is hereby declared null and void.
p. 3Declaration of wrongful termination - final orders
That the total sum of Kshs.1,756,562/= be paid within thirty (30) days from the date of this Award.
p. 4Payment direction and timeline - final orders
If the Court find that, as in this instant case, the party against whom certain proceedings have been initiated and is notified to file their Reply Statement and appearance but avoid to do so after repeated opportunities have been given, proceedings have to be conducted in their absence or 'ex-parte'
p. 2Ex-parte proceedings and natural justice
Accordingly, the Court find that the termination of services of the Claimants to be wrongful and illegal and therefore null and void.
p. 2Finding of unlawful redundancy termination

Issues in the judgment

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minor

The judgment states service was effected on 31st March, 2010, which predates the filing of the Memorandum of Claim on 16th July, 2010; the date of service of the hearing notice appears to be misstated.

minor

The Respondent's business is inconsistently spelled in the judgment as 'Wasaa Restaurant' in the title and 'Wasama Restaurant' in the body.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "King’oo & 2 others v Idhoade & another (Cause 802 of 2010) [2011] KEIC 34 (KLR)", Case Analysis (2011). Cause 802 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2011/34/eng@2011-05-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.