Stephen Onyango Otieno v Fiibarako Transporters Co. Limited [2018] KEELRC 553 (KLR)

Employment and Labour Relations Court

22 November 2018

JRJames Rika

1,575 words in judgment

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The bottom line

A Mombasa court dismissed a turn boy's unfair termination claim because he could not prove he was ever an employee of the transport company.

What this practically means

Executive summary

The Claimant sued the Respondent transportation company, alleging he was employed as a Turn Boy from August 2015 at a monthly salary of Kshs. 10,100, was injured in a workplace accident on 14th July 2016 while transporting maize, and upon returning from three weeks of sick leave was told on 5th August 2016 by the Respondent's Treasurer that his services were no longer needed. He claimed notice pay, twelve months' compensation for unfair termination, service pay, unpaid leave, salary underpayment, a certificate of service and costs. The Respondent denied ever employing him, stating it does not employ Turn Boys, has no record of any accident, and that hiring and firing is done solely by its Director. The Respondent's Accountant, John Songok, testified that the Respondent transports tea and wheat from warehouses to the Port of Mombasa, that loading is done by warehouse workers, and produced payroll and N.S.S.F records for August 2015 to August 2016 which did not include the Claimant's name. The Court found the Claimant's lone word inconsistent and full of gaps: he had no contract copies, pay slips or attendance register, vacillated on who employed and fired him, had initially sued a different company (F.T. Co. Limited), produced incomplete medical and occupational safety documents, gave inconsistent sick-leave durations, and called no corroborating witness despite claiming about thirteen fellow Turn Boys existed. The Court held the Claimant failed to establish an employment relationship under Section 2 of the Employment Act 2007 and found it unnecessary to determine the other issues. The Claim was dismissed in its entirety with no order on costs.

Key legal issues

Whether an employment relationship existed

Holding

The Claimant failed to prove he was an Employee of the Respondent within Section 2 of the Employment Act 2007

Reasoning

The Respondent produced payroll and N.S.S.F records for the relevant period, none of which listed the Claimant. Its evidence was that it did not employ Turn Boys and that the Director alone hired and fired. The Claimant's lone, inconsistent word, without contracts, pay slips, attendance register or a corroborating witness, could not counter this documentary evidence.

p. 2

Burden of proof on the claimed workplace accident

Holding

The alleged accident and injury were not proved; medical and occupational safety documents were incomplete and inconsistent

Reasoning

No medical records were produced; the sick-leave period was inconsistently given as 21 or 52 days; the DOSH form lacked employer details and admission dates; the initial claim and Work Injury Form named a different company, F.T. Co. Limited; and neither the Driver nor any warehouse witness was called.

p. 2

Legal principles established

Where employment is denied and no employment records exist, a claimant should avail corroborative evidence of a witness who worked with him or saw him work
A claim cannot rest on an inconsistent, unsupported lone word of the claimant against strong documentary evidence

Court orders

1.The Claim is dismissed in its entirety
2.No order on the costs

Authorities

Legislation

Employment ActSection 2

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claim for unfair termination and employment benefits)

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (1)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Kenya Hotels & Allied Workers Union v Ikonia Resort & Hotels Limited & another (Cause E032 of 2022) [2023] KEELRC 618 (KLR)
[2023] KEELRC 618 (KLR)16 Mar 2023

Cite this brief

Caselaw, "Stephen Onyango Otieno v Fiibarako Transporters Co. Limited [2018] KEELRC 553 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/553/eng@2018-11-22

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