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ELRCDismissedCause No. 1828 of 2014· [2018] KEELRC 369 (KLR)

Peter Nzomu Kaloki v Rahab Kaloki [2018] KEELRC 369 (KLR)

Industrial Court of Kenya
3 December 2018
DMD. K. Njagi MareteMOMaureen Onyango
1,441 words in judgment
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The bottom line

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A security guard lost his unfair dismissal case in Kenya because he sued a company director instead of the company that actually employed him.

What this practically means

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Executive summary

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The claimant sued the respondent, whom he alleged had employed him in November 2011 and summarily dismissed him in August 2013 without valid reason or procedural fairness. He sought declarations of wrongful, unfair and discriminatory dismissal, damages, salary in lieu of notice, a certificate of service, leave allowance and severance pay. The respondent denied ever employing the claimant, asserting he was employed by Superiorfone Holdings Company Limited, a company in which she is a co-director, and that his services were terminated following his gross negligence as a night guard during a robbery at the company premises on 21st August 2013. The matter proceeded by written submissions, the claimant filing none. The court framed five issues, principally whether an employment relationship existed between the claimant and the respondent. Relying on the respondent's documentary evidence of employment by Superiorfone Holdings Company Limited, the court found the claimant had sued the wrong party and had failed to adduce any evidence in support of his claim. It held that the claimant was not the respondent's employee; consequently the issues of valid reasons and unfair dismissal fell away, and the claim collapsed in toto. The claim was dismissed with each party bearing their own costs. Judgment was signed by D. K. Njagi Marete, J, and delivered by Maureen Onyango, Principal Judge.

Key legal issues

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01

Existence of an employment relationship with the respondent

Holding

The claimant was not an employee of the respondent

Reasoning

The respondent denied employing the claimant and showed evidence that he was employed by Superiorfone Holdings Company Limited, a company where she is a co-director. The claimant filed no written submissions and adduced no evidence of employment by the respondent. The court found he sued the wrong party.

p. 3
02

Validity of the dismissal and entitlement to relief

Holding

The issues of wrongful/unfair dismissal and entitlement to relief fell away with the failure of the employment claim

Reasoning

Having found no employment relationship with the respondent, the court held that the second and third issues were not worthy of determination and the claimant was disentitled to the relief sought, the claim collapsing in toto.

p. 3

Legal principles established

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  • A claimant must adduce evidence in support and proof of the claim; merely laying down the claim without evidence is insufficient
  • A claimant must sue the correct employer; suing the wrong party defeats the claim

Court orders

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  1. 1.Dismissal of the claimant's claim
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 44(4)(g)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (Cause No. 1828 of 2014)

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, "Peter Nzomu Kaloki v Rahab Kaloki [2018] KEELRC 369 (KLR)", Case Analysis (2018). Cause No. 1828 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/369/eng@2018-12-03

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