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ELRCPartially AllowedStatement of Claim dated 12th March 2012· [2014] KEELRC 4 (KLR)

Johana Odigo Apindi v Panesar’s Kenya Limited [2014] KEELRC 4 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
9 May 2014
MNMathews N. Nduma
2,922 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A carpenter won Kshs.1.4 million in unpaid contract wages because the hotel's own paperwork proved he was employed, with interest and costs.

What this practically means

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Executive summary

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The Claimant, a carpenter who had worked for the Respondent since 1984, sued for Kshs.1,437,300/= allegedly due under a written contract dated 23rd September 2009 under which he was to travel to Maputo, Mozambique and fit doors and curtain frames at the Polana Serena Hotel over six months for a total labour charge of Kshs.1,527,300/=, Kshs.100,000/= payable to his wife as down payment. He returned on 18th February 2010 after about four months and twenty-one days. The Respondent denied the written agreement as a forgery, alleging instead a verbal engagement at Kshs.20,000/= per month and termination for poor workmanship, and filed a counterclaim. At trial the Claimant gave candid and consistent evidence, corroborated by a visa application letter on the Respondent's letterhead and a tabulation of fees prepared by the Respondent's representative, Mohan Panesar. The Court disbelieved the Respondent's three witnesses, noting the Respondent had knowingly selected the Claimant to build 90 doors for the high-end hotel and could not credibly claim he was incapable of fitting the same doors. The Respondent's shift at submissions to deny employment altogether was rejected as an afterthought contrary to its own pleadings admitting employment. The Court found the Claimant had proved his claim on a balance of probability and was owed Kshs.1,437,300/=, payable with interest at court rates from 18th February 2010. The counterclaim was dismissed for want of pleading and evidence. The claim for unfair termination was withdrawn by the Claimant, so no damages were awarded on that head. The Respondent was ordered to pay costs of the suit.

Key legal issues

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01

Existence and terms of the contract of employment

Holding

The Court upheld the agreement dated 23rd September 2009 as genuine, finding the Claimant was employed at a contract sum of Kshs.1,527,300/=, of which Kshs.1,437,300/= remained unpaid.

Reasoning

The Court evaluated the evidence and found the agreement was on the Respondent's letterhead, consistent with the covering letter to the Mozambique High Commission seeking visas, and signed by the Claimant and the Respondent's representative (RW1). The figures were supported by the tabulation marked 'C' done by Mohan Panesar. The volume of work - 90 doors built in Kenya and fitted in Maputo over six months for a high-end hotel - was consistent with the agreed remuneration, and the agreement was partly performed by the payment of Kshs.90,000/= to the Claimant's wife.

p. 6
02

Veracity of the Respondent's witnesses

Holding

The Court disbelieved the Respondent's three witnesses, whose evidence that the Claimant was incapable of fitting the doors he had built was inconsistent and self-serving.

Reasoning

RW2 and RW3, though long-serving colleagues, sought to paint the Claimant in poor light. The Respondent knew the Claimant well since 1984 and had selected him to build 90 doors for a very high-end hotel in Maputo. It made no sense that he would be picked for such work and then be unable to fit the same doors he had built. The supervisor, Mr. Channa, was not called to testify, and no warning letter was produced.

p. 5
03

The Respondent's counterclaim

Holding

The counterclaim was dismissed for want of averments and supporting evidence.

Reasoning

The Respondent made no averments regarding the counterclaim and adduced no evidence in support of it in Court. It therefore fell away and was dismissed.

p. 5

Legal principles established

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  • Admissions in pleadings and viva voce evidence that an employment relationship existed bind the party making them and answer the issue of whether an employment relationship existed.
  • A party's belated shift of position from its pleadings is treated as an afterthought not supported by the pleadings and evidence.

Court orders

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  1. 1.The Respondent to pay the Claimant Kshs.1,437,300/= for work done in Maputo Serena Hotel
  2. 2.Interest on the said amount at Court rates from 18th February 2010 until payment in full
  3. 3.The Respondent to pay the costs of the suit
  4. 4.The Respondent's counterclaim is dismissed

Authorities

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Legislation

  • Employment ActSection 45(3)
Jurisdiction invoked
Original employment jurisdiction of the Industrial Court under employment law

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, "Johana Odigo Apindi v Panesar’s Kenya Limited [2014] KEELRC 4 (KLR)", Case Analysis (2014). Statement of Claim dated 12th March 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/4/eng@2014-05-09

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