REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC CAUSE NO. OF 2024
AMBROSE MUTUA MWANIKI……………………………………...........…CLAIMANT
VERSUS
PELICAN HAULAGE CONCTRATORS
LTD…………………………...RESPONDENT
MEMORANDUM OF CLAIM
ISSUSE FOR DETERMINATION
I. Unlawful/unfair termination contrary to the Employment Act, 2007
A. DESCRIPTION OF PARTIES
1. The Claimant is an adult of sound mind a resident and working for gain in Nairobi
County. His address for service for the purposes of this suit is c/o C. O WASONGA &
COMPANY ADVOCATES, UNIAFRIC HOUSE, 2ND FLOOR, SUITE 220,
KOINANGE STREET, P.O. BOX 223-00100 NAIROBI.
2. The Respondent is a Company registered under the Companies Act, 2015 Cap 486 Laws
of Kenya and operates as a transporting company based in Nairobi. (Services of
Summons shall be effected upon the Respondent through the Claimant’s Advocates
offices).
STATEMENT OF CLAIM
B. FACTS
3. That at all material time of this suit, the Claimant was an employee of the Respondent
working as a heavy commercial driver, earning a monthly salary of Kshs. 29,000 (twenty-
nine thousand) that was payable at the end of every month from April 2022.
4. That the Claimant throughout his employment dutifully, diligently, and faithful served as
required under his job description until he was unfairly/unlawfully terminated.
5. That on or about the 13th April, 2024, the Claimant was called to the Respondent’s office
and instructed to sign a letter the contents of which he reiterates he did not understand.
6. That he thus did not sign the said letter and was shocked to be told that his contact of
employment was terminated and was instructed never to come back to work again.
C. GROUNDS
a) PARTICULARS OF UNFAIR/UNLAWFUL TERMINATION
i. Failing to give notice of termination of employment
7. The Claimant avers that being an employee of the Respondent and paid at regular
periodic intervals of twenty-eight (28), he was not issued with a written notice of
termination in writing contrary to Section 35 (i)(c) of the Employment Act, 2007
8. That in contravention to the provisions of Section 41 of the Employment Act, 2007, the
Respondent issued the Claimant with a letter which he reiterates that he did not
understand the contents and when he refused to sign the said letter his contract of
employment was terminated.
ii. Failing to give reasons for the termination of employment and accord
the Claimant a fair hearing
9. The Claimant further avers that the Respondent did not provide the reasons for
terminating his contract of employment, nor was he given a chance to show cause why his
contract should not be terminated, contrary to the provisions of Section 45 of the
Employment Act, 2007, and Articles 47 and 50 of the Constitution of Kenya, 2010, which
provide for the right to Fair Administrative Action and the Right to a Fair Hearing.
iii. Failing to issue the Claimant a Certificate of Service
10. The Claimant further avers that in blatant disregard to the law, the Respondent wilfully
neglected to issue him with a Certificate of Service upon terminating his contract of
employment contrary to Section 51 of the Employment Act, 2007
11. That as a result of the Respondent’s unlawful/unfair termination, the Claimant has
suffered loss and damages and the Claimant now claims remedial action from this Court.
12. That there is no other suit pending between the Claimant and the Respondent on the same
subject matter
13. That despite a demand letter and notice of intention to sue being issued the Respondent
has failed to make good the Claimant’s claim.
14. That the Respondent’s head office is located in Nairobi and thus this Honourable Court
has jurisdiction to entertain this suit.
D. LAWS/POLICIES/PRINCIPLES/CONVENTIONS RELIED UPON
1. The Constitution of Kenya, 2010
2. The Employment Act, 2007
3. The Employment and Labour Relations Act, 2014
E. SCHEDULE OF DOCUMENTS TO BE RELIED UPON
1. Demand Letter dated 21st May 2024
2. A copy of the Claimant’s Pelican Haulage Ltd Driving Identity Card
3. A copy of the Claimant’s pay slip for March 2024
4. A copy of the Claimant’s NSSF statement of account dated 16th May 2024
F. RELIEFS
REASONS WHEREOF the Claimant prays for judgement against the Respondent as
follows:
a) A declaration that the termination of the Claimant’s contract of employment
was substantively and procedurally is unfair/unlawful.
b) Three months salary in lieu of notice (Kshs. 29,000*3) = Ksh. 87,000
c) 12 (twelve) months salary compensation for unfair termination
(29,000* 12) = Kshs. 348,000
d) Unpaid NSSF remittance = Ksh. 14,400
TOTAL Kshs. 449,400
e) Interests on (b)(c) and (d) at the courts rates till payment in full.
f) The cost of this suit
g) Certificate of Service.
h) Any other reliefs as the court may deem fit and just to grant in the
circumstances
DATED …………………………DAY OF ……………………………2024
C.O. WASONGA &COMPANY
ADVOCATES FOR THE CLAIMANT
DRAWN & FILED BY:
C.O WASONGA & COMPANY ADVOCATES
UNIAFRIC HOUSE, 2ND FLOOR, SUITE 220
KOINANGE STREET
P.O BOX 223-00100
NAIROBI.
Email:
[email protected][email protected]TO BE SERVED UPON
