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ELRCDismissedCause 928 of 2010· [2013] KEELRC 502 (KLR)

KENYA UNION OF COMMERCIAL FOOD AND ALLIED WORKERS V MWANA BLACK SMITH LIMITED [2013] KEELRC 502 (KLR)

Industrial Court of Kenya
26 February 2013
LNLinnet Ndolo
844 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A worker claiming employment rights in Kenya must prove the job relationship existed, or the entire claim collapses and costs follow.

What this practically means

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Executive summary

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The Claimant Union, suing on behalf of grievant Kenneth Ouma Obonyo, claimed unfair termination and unpaid terminal dues from Mwana Black Smith Limited: three days' salary for March 2009, gratuity for eight years at eighteen days per year, leave travelling allowance, compensation for off days and public holidays, and salary underpayment. The grievant testified that he was employed as a night guard at Kshs. 3,000 monthly from January 2001 until his resignation on 3rd March 2009, working seven days a week without leave. The Respondent denied any employment relationship, asserting that security at the premises (Kiruga Complex) was provided by a private security firm contracted by the landlord, and that the grievant washed motor vehicles for various people at a fee. The court first settled the Respondent's identity, noting that Mwana Blacksmith is a business name rather than a legal entity, and, no preliminary objection having been taken, deemed Charles Asiaba trading as Mwana Blacksmith to be the Respondent. On the central question of whether an employment relationship existed, the court applied the definitions in Section 2 of the Employment Act, 2007, and held that a claimant of employment rights bears the burden of proving such a relationship. The grievant produced no document, not even the resignation letter he claimed to have written. The court found no evidence of an employment relationship and dismissed the entire claim, ordering the Claimant Union to pay the Respondent's costs. Judgment delivered at Nairobi on 26th February 2013 by Linnet Ndolo, Judge.

Key legal issues

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01

Existence of an employment relationship between the grievant and the Respondent

Holding

The claimant failed to prove an employment relationship; the claim was dismissed in its entirety.

Reasoning

The court defined 'employee', 'employer' and 'contract of service' under Section 2 of the Employment Act, 2007, and noted that an employment relationship has serious implications, requiring the court to be fully satisfied of its existence. The grievant produced no document, not even the resignation letter he claimed to have written, and no viva voce evidence established the relationship. The respondent's evidence was that the grievant washed motor vehicles at a fee for various persons and was not employed by anyone.

p. 2
02

Identity and legal status of the Respondent

Holding

Mwana Blacksmith is a business name, not a legal entity; the court deemed Charles Asiaba trading as Mwana Blacksmith to be the Respondent.

Reasoning

Charles Asiaba clarified in sworn evidence that Mwana Blacksmith is not a company but a business name under which he runs a shop. The court observed that a business name is not a legal entity capable of suing or being sued. However, since no preliminary objection was raised on the point, the court substituted Charles Asiaba trading as Mwana Blacksmith as the proper Respondent and proceeded to determine the claim on the merits.

p. 2

Legal principles established

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  • A claimant asserting employment rights bears the burden of proving the existence of an employment relationship, even absent documentary proof, through viva voce evidence.

Court orders

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  1. 1.The Claimant's entire claim on behalf of the grievant was dismissed
  2. 2.The Claimant Union was ordered to pay the costs of the case

Authorities

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Legislation

  • Employment ActSection 2

Cases cited (1)

  • Mary Mmbone Mbayi Vs Chandubhai Patel & Another
    Industrial Cause No. 761 of 2011
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007 (Industrial Court cause)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "KENYA UNION OF COMMERCIAL FOOD AND ALLIED WORKERS V MWANA BLACK SMITH LIMITED [2013] KEELRC 502 (KLR)", Case Analysis (2013). Cause 928 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/502/eng@2013-02-26

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