Elijah Bulibo Atulo v Jonathan Okutoyi Masongole & another [2016] KEELRC 832 (KLR)
The bottom line
#A Kenyan court held a family liable for a longtime worker's service pay despite their business changing names, awarding him Kshs. 50,400.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer in a family business operated through multiple corporate forms
The Respondents, who inherited and actively ran the family security business, were the Claimant's employers
The Court found that Arrow Ninja, New Arrow Ninja and WestKay Services were all business vehicles used by the family of James Okutoyi Masongole. The business passed to the siblings through a probate cause at the High Court. The Respondents paid the Claimant's salary, exercised control over him and made the decisions about his retirement, fitting the statutory definition of 'Employer' under Section 2 of the Employment Act 2007.
Evidential weight of the salary voucher purporting to show payment of Kshs. 42,000 terminal dues
The voucher was rejected as doubtful and unreliable evidence of payment
The Court found the authenticity of the voucher doubtful, noting the Claimant's evidence that the figure was altered by adding a zero to Kshs. 4,200, a report made to the Police whose status was not disclosed, the document's reference to a 'casual' employee with no evidence of casual employment, and the absence of any breakdown as required by Section 20 of the Employment Act 2007.
Entitlement to service pay on retirement
The Claimant was awarded service pay at 15 days' salary for each of 24 years completed in service, totalling Kshs. 50,400
Given the Parties' long relationship, the Court held the Respondents should recognise and reward the Claimant's long years of service to the family. It rejected the claims pegged on 24 years of underpayment, leave and allowances for lack of pleading and proof, but allowed service pay calculated at 15 days' salary (Kshs. 2,100) for each of the 24 years completed.
Legal principles established
#- Business and legal forms through which a family operates its business are of no consequence in an employment claim against those who actively employed the claimant
- Persons who exercised control over an employee and made decisions about his employment and departure are properly sued as Employers under Section 2 of the Employment Act 2007
Court orders
#- 1.The Respondents shall pay to the Claimant Kshs. 50,400 in service pay
- 2.Costs to the Claimant
- Jurisdiction invoked
- Industrial Court jurisdiction over employment disputes; award under Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Bulibo Atulo v Jonathan Okutoyi Masongole & another [2016] KEELRC 832 (KLR)", Case Analysis (2016). Cause Number 208 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/832/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.