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ELRCDismissedStatement of Claim filed 28th April 2015 (Employment Cause, Mombasa)· [2016] KEELRC 1874 (KLR)

Omondi v Nelson (Cause 272 of 2015) [2016] KEELRC 1874 (KLR)

Employment and Labour Relations Court
29 September 2016
JRJames Rika
1,368 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed an unfair termination claim because the worker couldn't prove an employment relationship actually existed.

What this practically means

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Executive summary

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The Claimant sued the Respondent claiming he was employed through an oral contract to look after the Respondent's furniture at Pirates Beach, Mombasa, and later at a kiosk, at Kshs. 500 per day. He alleged the Respondent stopped paying wages from 27th November 2013, retrieved his furniture without informing him, and terminated the contract without notice or cause. He sought unpaid wages, notice pay of Kshs. 13,000, twelve months' salary as compensation for unfair termination, costs and interest. The Respondent denied the employment entirely, stating his furniture was secured within his fenced residence at Kibaki Flats, and that the Claimant was a Beach Boy who illegally charged the public for sitting on abandoned articles outside the premises; he sought dismissal with costs. Both parties testified. The Court found the Claimant did not establish an employment relationship: he called no witnesses, his hustling activities at the beach were not tasks assigned by the Respondent, and he was not controlled, instructed, remunerated or provided tools of work by the Respondent, so he was not an employee under Section 2 of the Employment Act 2007. It was not shown the Respondent ran any business at Pirates Beach. The Court found the Claimant was a Beach Boy attempting to draw the Respondent into a fabricated claim. The claim was dismissed with the Claimant to meet 30% of the Respondent's costs.

Key legal issues

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01

Whether an oral contract of employment existed between the Claimant and the Respondent

Holding

No employment relationship was established; the Claimant failed to prove engagement, and called no witnesses to support his account

Reasoning

The Claimant alleged an oral engagement to look after the Respondent's furniture, but called no witness who saw him being engaged or working. His own account showed he survived by hustling at the beach, selling groundnuts and eggs. The tasks were not assigned by the Respondent, and the elements of control, remuneration and tools of work were all absent, so he was not an employee under Section 2 of the Employment Act.

p. 3
02

Whether the Respondent unfairly terminated the Claimant's employment

Holding

The claim of unfair termination fails because no contract of employment existed that could have been terminated

Reasoning

It was not shown the Respondent ran or intended to run any business at Pirates Beach, or owned a kiosk there. The Respondent lived with his furniture secured behind an electric fence with security guards at Kibaki Flats. The Court found the Claimant was a Beach Boy who, through past familiarity with the Respondent, sought to draw him into a fabricated claim.

p. 3

Legal principles established

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  • A party alleging an employment relationship must establish its elements: control, instruction, remuneration and provision of tools of work; absent these, no employment exists.
  • An employer cannot be called upon to justify termination of an employment relationship that never existed.

Court orders

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  1. 1.The Claim is dismissed
  2. 2.The Claimant to meet 30% of the costs incurred by the Respondent

Authorities

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Legislation

  • Employment ActSection 2
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007

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, "Omondi v Nelson (Cause 272 of 2015) [2016] KEELRC 1874 (KLR)", Case Analysis (2016). Statement of Claim filed 28th April 2015 (Employment Cause, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1874/eng@2016-09-29

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