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ELRCDismissedMemorandum of Claim filed 15th July 2013· [2016] KEELRC 1659 (KLR)

Godfrey Ouma Onyango v Avco Agencies Limited [2016] KEELRC 1659 (KLR)

Employment and Labour Relations Court
19 February 2016
ANAbuodha J. N.
872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker suing for unfair dismissal lost because he could not prove who his actual employer was.

What this practically means

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Executive summary

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By a memorandum of claim filed on 15th July 2013, the claimant alleged he was employed by the respondent as a Mason on 27th November 2010 at Kshs.700 per day and dismissed on 7th January 2013 without reason and without payment of terminal dues. He sought compensation for unfair and unlawful termination. The respondent denied employing the claimant, asserting that any labour relationship arose through a labour contract with Brighton Lumati Alukongo t/a Lumati Contractors, who supplied labour as a subcontractor. The claimant testified that the respondent was his employer and only supervisors changed, while the respondent's director, Davinder Singh Sura, produced an agreement with Lumati and payment vouchers. The court noted the respondent's memorandum raised privity of contract and that the attached contract, though dated 20th July 2012 and entered into on 27th July 2010, was executed with the respondent signing as contractor and Lumati as client, which the court considered possibly a mix-up. The court held that the claimant should have filed a reply or sought to join Lumati as co-defendant, and that alleging fabrication was insufficient. Applying the balance of probabilities standard, the court found the claimant had not discharged his burden, while the respondent showed it was more probable than not that the claimant was employed by Mr. Lumati. The respondent was found non-suited and the suit was dismissed with costs, the court noting that any claim properly lies against Mr. Lumati.

Key legal issues

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01

Burden of proving the employment relationship

Holding

The claimant failed to prove he was employed by the respondent; it was more probable he was employed by Mr. Lumati

Reasoning

The court held that the claimant bore the burden of proving his claim on a balance of probabilities. The respondent raised privity of contract, relying on an agreement with Lumati Contractors and payment vouchers, indicating the claimant was Lumati's employee. The claimant's assertion that Lumati's documents were fabricated, without a reply or application to join Lumati, was insufficient. The respondent thus showed it was more probable than not that it was not the claimant's employer.

p. 2
02

Claimant's duty to rebut averments and documents in the memorandum of response

Holding

The claimant should have filed a reply to the memorandum of response or sought to join Mr. Lumati as co-defendant; merely alleging fabrication was insufficient

Reasoning

The court observed that the respondent's averments and attached documents raised a genuine privity issue. This obliged the claimant to respond procedurally, either by filing a reply with rebuttal documents or by seeking joinder of Lumati. The claimant's reliance on Lumati not being called as a witness could not discharge his burden.

p. 2

Legal principles established

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  • Proof in civil cases is on a balance of probabilities and the duty to prove the claim lies with the claimant

Court orders

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  1. 1.The suit is dismissed with costs
  2. 2.A claim if any lies against Mr. Lumati
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair and unlawful termination claim

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, "Godfrey Ouma Onyango v Avco Agencies Limited [2016] KEELRC 1659 (KLR)", Case Analysis (2016). Memorandum of Claim filed 15th July 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1659/eng@2016-02-19

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