Wyckliffe Daniel Bengi v M/s Regnal Oil (Kenya) Limited [2015] KEELRC 1066 (KLR)

The Respondent argued that Cause No. 75 of 2011, dismissed on 27 April 2011, covered the same claim. The Court extracted the file and found the suit had been struck out on 27 April 2011. Since the earlier suit was struck out and no longer exists, its striking out does not bar the Claimant from filing the current suit, which was filed within the applicable limitation period.

The Claimant alleged verbal employment as Foreman/Caretaker at Kshs.52,000.00 per month. However, he could not recall any workmates despite holding a supervisory role, his name did not appear in the Respondent's payroll, PAYE or employee lists, he had no NSSF or NHIF records, and he did not challenge the lump sum voucher of Kshs.80,000.00 with a 10% retainer for roofing work, which indicated a one-off specific-task engagement rather than full-time employment.

The claim was for non-payment of terminal dues. The Court held that the Claimant bore the responsibility to prove his case on a balance of probabilities and to show how the terminal dues arose from the alleged termination. Without proof of the employment relationship, the question of what was legally due does not arise, and even an unrepresented claimant bears this burden.

Having found no employment relationship, all terminal dues claims fail as they are available only to employees. On compensation, the Court noted that a claim for 12 months' compensation arises only from an unfair termination under section 45 of the Employment Act, and no unfair termination was pleaded in the memorandum of claim or supported in evidence; placing such a claim in the prayers was a misnomer.