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ELRCDismissedNot stated in judgment· [2018] KEELRC 1849 (KLR)

Shadrack Wambua Kivuva v Dickways Construction Company Ltd [2018] KEELRC 1849 (KLR)

Employment and Labour Relations Court
13 March 2018
NMNzioki wa Makau
1,592 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a worker's unfair termination claim because he could not prove he was a permanent employee or that he was actually dismissed.

What this practically means

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Executive summary

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The Claimant sued seeking terminal dues and compensatory damages for non-payment following the alleged end of his employment as a machine operator from October 2013 to April 2017, claiming untaken leave, one month's notice pay of Kshs. 12,000/-, overtime and public holidays pay, and 12 months' salary as compensation of Kshs. 144,000/-, plus costs and interest. The Respondent denied that the Claimant was its employee, pleaded trespass, denied any termination, alternatively pleaded that any dues were fully paid, and questioned the court's jurisdiction and service of a notice of intention to sue. The Claimant testified that he mixed concrete/bitumen on road sites including Kenol-Sagana, was paid Kshs. 500/- per day (Kshs. 3,000/- weekly), was told by a supervisor that his services were no longer needed, and worked long hours including some public holidays. The Respondent called an accountant who confirmed the Claimant worked as a casual at Kenol-Sagana in late 2016, that casuals were hired from the locality as and when needed, that payments were made weekly via Equity Bank, and that the signature on a letter of recommendation produced by the Claimant was not that of the Respondent's MD, Joseph Kariuki. The court found the Claimant was a casual whose services ended on completion of the road works, that he had failed to prove dismissal or unfair termination, and that his credibility was impaired by the disowned document. The suit was dismissed with costs to the Respondent.

Key legal issues

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01

Nature of the Claimant's engagement

Holding

The Claimant was a casual employee who offered his services on site when there was work, not an employee on a contract of service

Reasoning

The court found from testimony that the Claimant earned Kshs. 500 per day, Kshs. 3,000 weekly, and that the engagement was as and when work was available on the road project. The contract therefore ended on completion of the works rather than by termination.

p. 3
02

Whether dismissal/unfair termination was proved

Holding

The Claimant failed to prove that a dismissal took place or that termination was unfair

Reasoning

The Claimant's own cross-examination indicated the road project came to an end and he left staff marking the road. He also presented a letter of recommendation which the Respondent disowned through its accountant who testified the signature was not the MD's, undermining his credibility.

p. 3

Legal principles established

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  • In an unfair termination claim the claimant must prove the dismissal was unfair and the employer must prove grounds existed for the dismissal
  • A claimant who fails to prove dismissal on a balance of probabilities cannot recover terminal dues or compensation

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs of the suit awarded to the Respondent

Authorities

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Legislation

  • Employment Act 2007Section 44
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 49

Cases cited (2)

  • Everlyne Musimbi Enonda v Jerida Anyonga
    [2017] eKLR
  • Vincent Osoro Onsongo v Lwala Community Alliance
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (implied by the pleadings; not expressly invoked in the judgment)

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, "Shadrack Wambua Kivuva v Dickways Construction Company Ltd [2018] KEELRC 1849 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1849/eng@2018-03-13

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