Ruth Wanjiru Mungai Kang’ong’oi v Communication Ultimate Limited (Kul) [2016] KEELRC 1730 (KLR)
The bottom line
#A Kenyan court awarded only the admitted Kshs.132,114.08 because the employee could not prove her unsigned contracts or itemise her commission claim.
What this practically means
#Executive summary
#Key legal issues
#Authenticity and weight of unsigned contracts of employment
Unsigned contracts not on the employer's letterhead and unexplained by the Claimant were not proved; only the signed contract dated 17th January 2011 was valid
The court compared annexures: the 17th January 2011 contract was signed and on the respondent's letterhead, while the 31st August 2011 and 6th March 2012 letters were unsigned, not on letterhead, and the Claimant did not explain her failure to sign them. The respondent denied issuing the account manager contract, so the burden fell on the Claimant to prove its issuance.
Entitlement to commissions at 10%/15% versus 5%
The respondent's own evidence corroborated payment of 10% commissions, but the Claimant failed to itemise the sums owed so as to enable assessment; only the admitted sum of Kshs.132,114.08 was awarded
The respondent's witness admitted commissions were paid at 10% until November 2012 and that two invoices were paid at 15% on demand, giving credence to the Claimant's averments. However, the respondent failed to produce the applicable policy, and the Claimant failed to break down the claimed Kshs.267,600, so the court could not assess anything beyond the admitted amount.
Misjoinder of affiliate entity
CIO East Africa, which allegedly contracted the Claimant under the contested work, should have been joined as a respondent alongside the Respondent
The court noted the disputed commissions related partly to CIO East Africa work, a separate legal entity from the Respondent despite being an affiliate. Liability does not transfer by affiliation, so where contracts carried different sets of work both entities ought to have been listed as respondents.
Compliance with Rule 4 of the Court Rules on stating the issue in dispute
The memorandum of claim did not set out the issue in dispute as required; the court proceeded on the issue that emerged at hearing
The court observed that the Claimant's memorandum of claim did not comply with Rule 4 of the Court Rules requiring the issue in dispute to be stated. Notwithstanding, the contested commissions and employment emerged at the hearing and were determined on that basis.
Legal principles established
#- The employer has the duty to produce the employment contract issued to the employee where its existence is contested, under sections 73 and 74 of the Employment Act
- Section 10 of the Employment Act makes it mandatory for an employer to give an employee a written contract of employment within two months of employment
- Where an employee serves under two contracts with different but linked entities, both entities should be listed as respondents
Court orders
#- 1.Judgment entered for the Claimant for the sum of Kshs.132,114.08
- 2.Claims set out are dismissed save for the admitted sum of Kshs.132,114.08
- 3.Each party to meet its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act; Article 41 of the Constitution; Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruth Wanjiru Mungai Kang’ong’oi v Communication Ultimate Limited (Kul) [2016] KEELRC 1730 (KLR)", Case Analysis (2016). Cause No. 684 (A) of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1730/eng@2016-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.