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ELRCDismissedMemorandum of Claim dated 21st June 2010, filed 23rd June 2010· [2013] KEELRC 847 (KLR)

Kenya Union of Employees of Voluntary and Charitable Organizations (KUEVACO) v Holy Spirit Association for the Unifications of World Christianity & another [2013] KEELRC 847 (KLR)

Industrial Court (Employment and Labour Relations Court)
1 October 2013
MOMaureen Onyango
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court threw out a union claim for millions because it proved no actual employment relationship with the church it sued.

What this practically means

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Executive summary

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The Claimant union, on behalf of two Grievants, Rev. Boniface Otieno Okelo and Ms. Mazwel Mayamba Otieno Okelo, claimed they were employed without written contracts or salaries by the Association of Education Development (AED), the alleged forerunner of the Respondent church, from 1984; that they worked in Zaire and Tanzania, were recalled to Nairobi in 2001, received a hostile reception, were deprived of rent and basic needs, were evicted in 2005 losing property worth Kshs.215,000/=, and were eventually given notice to vacate Sasamoto Hostel. The Claimant sought quantum meruit, a 'benefice share of a true child' of USD 548,500 each, leave pay, pay in lieu of notice, 12 months' compensation, a benefice for life of USD 7,000 per month, and Kshs.215,000/= for lost property. The Respondent denied employing the Grievants, stating it was a distinct legal entity registered on 7th February 1994 under the Societies Act, with no relationship with AED or the Tanzanian mission registered in 1992, and that the Grievants were at most volunteers. The court, Lady Justice Maureen Onyango, framed three issues and applied Section 2 of the Employment Act. Finding no documentary or other evidence of a nexus between the Grievants and the Respondent, or between the Respondent and AED, she held no employment relationship was proved. Consequently there could be no termination of a non-existent employment relationship, and the third issue was not addressed. The claim was dismissed with no orders for costs on 1st October 2013.

Key legal issues

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01

Whether an employment relationship existed between the Grievants and the Respondent

Holding

No employment relationship was proved; the Respondent was a distinct legal entity registered in 1994 with no connection to AED, the alleged employer, and no documentation linked the Grievants to the Respondent.

Reasoning

The court applied the definitions of contract of service, employee and employer in Section 2 of the Employment Act. The Grievants alleged a verbal, unsalaried engagement by AED. The Respondent was registered on 7th February 1994 under the Societies Act, and its constitution mentioned no relationship with AED. The Tanzanian mission where the Grievants worked was a separate entity registered in 1992. The court found no nexus between the Grievants and the Respondent and no evidence connecting the Respondent and AED.

p. 3
02

Whether the Respondent terminated the Grievants' employment

Holding

The issue fell away because there was no employment relationship to terminate; the court made no finding on entitlement to payment.

Reasoning

Having found no employment relationship, the court held termination of a non-existent relationship was impossible and declined to determine the third issue on entitlement to payment, dismissing the claim outright.

p. 3

Legal principles established

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  • A party alleging an employment relationship must prove it; where no evidence connects the alleged employer (or its alleged forerunner) to the respondent entity, no employment relationship exists.
  • Without an employment relationship there can be no termination and no consequential employment benefits.

Court orders

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  1. 1.The case is dismissed with no orders for costs.

Authorities

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Legislation

  • Employment ActSection 2 (definition of contract of service, employee, employer)
  • Societies Actregistration of the Respondent on 7th February 1994
Jurisdiction invoked
Employment and labour relations dispute reported to the Minister for Labour; Employment Act

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, "Kenya Union of Employees of Voluntary and Charitable Organizations (KUEVACO) v Holy Spirit Association for the Unifications of World Christianity & another [2013] KEELRC 847 (KLR)", Case Analysis (2013). Memorandum of Claim dated 21st June 2010, filed 23rd June 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/847/eng@2013-10-01

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