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ELRCDismissedCause No. 1054 of 2012· [2013] KEELRC 187 (KLR)

Justus Kavisi Makosi v Wema Technical Services Limited [2013] KEELRC 187 (KLR)

Industrial Court of Kenya
23 July 2013
DMD.K.N. Marete
2,202 words in judgment
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The bottom line

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A Kenyan worker lost his entire Kshs.425,800 claim because he couldn't prove he was actually employed — no written contract meant no case.

What this practically means

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Executive summary

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The claimant sued the respondent alleging unlawful termination and wrongful dismissal without notice. He claimed he was employed from 1st February 2010 as an accountant, storekeeper and messenger at a monthly salary of Kshs.22,000.00, and that on 8th May 2012 the respondent's director assaulted him and terminated his services without complying with section 41 of the Employment Act, 2007. He sought Kshs.425,800 comprising notice pay, unremitted NSSF, NHIF and PAYE deductions, salary arrears, severance pay, leave pay and twelve months' compensation under section 15C of the Labour Institutions Act, 2007. The respondent denied ever employing the claimant. The claimant testified and called a former colleague, CW2, who corroborated his account and produced Mpesa transaction records, KRA VAT payment slips, a medical examination report and an NSSF card. The court framed four issues: existence of an employment relationship, whether it was proven, entitlement to relief, and costs. It found the Mpesa payments from the director were not linked to any employment, and the VAT forms and medical report did not establish an employment relationship. Noting section 9(1) of the Employment Act requires written contracts for engagements of three months or more, the court cautioned employees to insist on written contracts. Finding no employment relationship, the court dismissed the entire claim and awarded costs to the respondent.

Key legal issues

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01

Existence of an employment relationship

Holding

No employment relationship was established between the claimant and the respondent

Reasoning

The claimant relied on Mpesa transactions from the respondent's director, KRA VAT payment forms completed by the claimant, and a medical examination report. The court found the Mpesa payments were not linked to any employment, the VAT forms and medical report did not connect the claimant to the respondent as an employee, and there was no written contract as required by section 9(1) of the Employment Act for relationships exceeding three months.

p. 7
02

Entitlement to terminal dues and compensation

Holding

The claimant is not entitled to any of the relief sought as the claim for employment failed

Reasoning

Having found no employment relationship, all heads of claim - notice pay, unremitted statutory deductions, salary arrears, severance, leave pay and twelve months' compensation under section 15C of the Labour Institutions Act - fell away as unsustainable and untenable.

p. 7

Legal principles established

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  • Employees have a duty to insist on written contracts of employment for relationships of three months or more and should not sit on their rights

Court orders

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  1. 1.The claim is dismissed with costs to the respondent

Authorities

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Legislation

  • Employment Act, 2007section 9(1)
  • Employment Act, 2007section 41
  • Labour Institutions Act, 2007section 15C
Jurisdiction invoked
Industrial Court of Kenya, Cause No. 1054 of 2012 (employment and labour relations jurisdiction under the Labour Institutions Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Justus Kavisi Makosi v Wema Technical Services Limited [2013] KEELRC 187 (KLR)", Case Analysis (2013). Cause No. 1054 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/187/eng@2013-07-23

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