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ELRCDismissedNot stated in the judgment· [2018] KEELRC 387 (KLR)
Rosemary A Imbayi & another (Legal Representatives of the Estate of Jacob Auta Busena) v Century Drycleaners Limited [2018] KEELRC 387 (KLR)
Employment and Labour Relations Court
14 December 2018
442 words in judgment
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·~2 min to read original · ~4 min briefThe bottom line
#A Kenyan court dismissed an employee's family wage claim because the family presented documents but never proved the employment actually existed through evidence.
What this practically means
#Executive summary
#This was an undefended employment claim originally filed by Jacob Auta Busena (since deceased), who was substituted by Rosemary A. Imbayi pursuant to a limited grant of Letters of Administration Ad Litem and a substitution order made in 2017. The Claimants alleged that the Deceased was employed by the Respondent as a general labourer from 1989 at a monthly salary of Kshs. 3,000, later rising to Kshs. 7,165, and that his employment was unfairly terminated on 23rd January 2012 after he demanded a salary increment. The Claimants particularised underpayment of Kshs. 1,558.90 per month, non-payment of house allowance, non-payment of overtime for work from 7.30 am to 6.00 pm Monday to Sunday, and sought eight heads of relief including salary for days worked in January 2012, notice pay, leave balance, underpayment, severance pay for 23 years, 12 months' compensation and substantial overtime claims, together with costs and interest. No Reply was filed and there was no appearance for the Respondent at the hearing. The court framed the threshold issue as the claimant's burden to prove the existence of an employment relationship capable of enforcement, which is even more critical in an undefended claim where there are no admissions to leverage. Holding that, apart from statements in the pleadings, no evidence was led to establish the employment relationship, the court found the entire claim unsupported and dismissed it with no order for costs.
Key legal issues
#01
Whether the Claimants proved an employment relationship between the Deceased and the Respondent
Holding
The claim was dismissed because no evidence of the employment relationship was led beyond the pleadings.
Reasoning
In an undefended claim, the claimant cannot rely solely on pleadings; testimony was given by Rosemary A. Imbayi but the court found that no evidence established the employment relationship. Since proving the employment relationship is the threshold issue in an employment claim, its failure meant the entire claim was unsupported and therefore failed.
p. 2
Legal principles established
#- In an employment claim, the claimant must first prove the existence of an employment relationship capable of enforcement by the Court, which is critical in an undefended claim.
Court orders
#- 1.The Claimant's claim is dismissed with no order for costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (claim arising from employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rosemary A Imbayi & another (Legal Representatives of the Estate of Jacob Auta Busena) v Century Drycleaners Limited [2018] KEELRC 387 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/387/eng@2018-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.