Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 745 of 2012· [2015] KEELRC 1273 (KLR)

Kenya Building, Construction, Timber Furniture & Allied Industries Employees Union v Nakala Building, General Contractors Limited [2015] KEELRC 1273 (KLR)

Employment and Labour Relations Court of Kenya
11 March 2015
HWHellen S. Wasilwa
599 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled a casually engaged mason paid daily wages was not a permanent employee, so his termination claims failed.

What this practically means

#

Executive summary

#
The Claimant union filed a Memorandum of Claim on 3rd May 2012 on behalf of its member, Stephen Otieno (the Grievant), alleging unlawful dismissal. The Grievant claimed he was employed by the Respondent as a Mason from October 1994 until 26th July 2006, earning Kshs.400 daily, and that his job ended when the Respondent quit the construction industry to run its own hotel. He sought severance pay, two months' notice pay, leave pay for untaken leave, and a tools allowance. The Respondent denied the Grievant was ever employed as a Mason, contending he was a sub-contractor engaged as needed, and challenged the union's locus standi as a properly registered union. The court framed three issues: whether an employer-employee relationship existed; whether the Respondent breached any employment terms; and what remedies the Grievant was entitled to. On the evidence, the court found the Grievant was paid a daily wage of Kshs.400 weekly, worked only when work was available, and moved to other sites of the Respondent when there was no work, indicating no permanent employment relationship. Accepting the Respondent's characterisation of the Grievant as a sub-contractor, the court held there was no formal employer-employee relationship capable of supporting a claim for termination. The claim was therefore dismissed in its entirety, with each party bearing its own costs. Judgment was delivered by Hellen S. Wasilwa J on 11th March 2015.

Key legal issues

#
01

Existence of an employer-employee relationship between the Grievant and the Respondent

Holding

The court found no formal employer-employee relationship; the Grievant was engaged as a sub-contractor when work arose and paid a daily wage of Kshs.400/- weekly, working on other sites when there was no work.

Reasoning

The court considered the evidence that the Grievant was paid a daily wage of Kshs.400 payable weekly, worked only when there was work, and moved to other sites of the Respondent when there was none. The Respondent's position that the Grievant was a sub-contractor engaged as needed was accepted as reflecting the parties' intention. On that basis there was no permanent employment relationship capable of founding a termination claim.

p. 2

Legal principles established

#
  • Where a worker is engaged on and off as work arises and paid daily wages, with no permanency, no formal employer-employee relationship arises for which termination claims can be made

Court orders

#
  1. 1.Claim by the Grievant dismissed
  2. 2.Each party to bear its own costs

Authorities

#

Legislation

  • Trade Unions Act (repealed)Cap 233
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act (dispute reported through the Labour Officer)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Building, Construction, Timber Furniture & Allied Industries Employees Union v Nakala Building, General Contractors Limited [2015] KEELRC 1273 (KLR)", Case Analysis (2015). Cause No. 745 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1273/eng@2015-03-11

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