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ELRCDismissedEmployment Cause filed 8th June 2015 (number not stated in judgment)· [2018] KEELRC 2213 (KLR)

Mark Abung’ana Litiema & 3 others v L. B. Sanghani Flats/Estate [2018] KEELRC 2213 (KLR)

Employment and Labour Relations Court
28 February 2018
HWHellen Wasilwa
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Night guards lost their unfair dismissal case because they sued a residential estate that legally did not exist as an employer.

What this practically means

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Executive summary

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The Claimants, engaged as private night guards, sued on 8th June 2015 claiming damages for unfair and unlawful termination and underpayments. They alleged they were employed by the Respondent from 4th March 2005 at a salary below the statutory minimum wage, earning up to Kshs.10,000 by December 2014, and were terminated without notice or reason on 10th May 2015, receiving only Kshs.9,000 each for the ten days worked. They sought underpayments under the Labour Institutions Act, terminal dues and damages for unlawful dismissal, relying on the Protective Security Guards Services Order 1998, the Employment Act and Krystalline Salt Ltd v Kwekwe Mwakele. The Respondent denied the existence of any entity known as L.B. Sanghani Flats/Estate capable of being sued, asserting the proprietor was Lalji Bhimji Sanghani individually, and maintained the Claimants were self-employed security providers paid directly by tenants whose services ended when tenants engaged a security firm. The court framed three issues: who employed the Claimants, whether the termination was unlawful, and entitlement to remedies. However, it disposed of the suit on a threshold point: the Claimants described the Respondent as a residential estate, gave no evidence that it was a registered legal entity, and made no effort to correct the anomaly despite the Respondent's denial. A residential estate not registered under the relevant laws cannot sue or be sued and lacks capacity to employ. On that ground alone the suit failed in its entirety, and each party was ordered to bear its own costs. The substantive questions of employment relationship and unfair termination were not reached.

Key legal issues

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01

Whether the Respondent as sued is a legal entity capable of employing the Claimants

Holding

The Respondent as described (a residential estate) is not a legal entity capable of suing or being sued, and the suit fails on that ground alone.

Reasoning

The Claimants described the Respondent as a residential estate but did not show it was a registered legal entity. The Respondent denied the existence of such an entity, asserting that Lalji Bhimji Sanghani individually owns the property. The Claimants made no effort to correct this anomaly and adduced no evidence of legal personality. Without capacity, the estate could not have employed them.

p. 3
02

Who employed the Claimants

Holding

Not determined on the merits because the suit failed on the threshold issue of the Respondent's lack of legal capacity; the Respondent denied employing the Claimants and asserted they were self-employed security providers paid by tenants.

Reasoning

RW1, the proprietor, denied ever employing the Claimants though he occasionally paid them Kshs.1,000; RW2 testified the tenants never formed an association or signed any agreement with the Claimants. The Respondent maintained any engagement was between the tenants and the Claimants. The court did not resolve the employment-relationship question given its finding on capacity.

p. 2

Legal principles established

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  • A residential estate, unless registered as such under the relevant laws, is not a legal entity capable of suing or being sued, and cannot have the capacity to employ.

Court orders

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  1. 1.The suit is dismissed in its entirety for failure to establish that the Respondent as sued is a legal entity
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 94(5)
  • Employment ActSections 2, 5(3)(b), 9, 13(6), 41, 44
  • Labour Institutions ActSection 48(1), (2) & (3)
  • Legal Notice No. 24 Protective Security Guards Services Order1998

Cases cited (3)

  • Krystalline Salt Ltd vs Kwekwe Mwakele and 67 Others
    Court of Appeal Case No. 79 of 2015
  • Thomas Omondi vs Tom Nelson
    Mombasa Cause No. 272 of 2015
  • Wallen Yaberi Onserio vs Protective Custody Limited
    Industrial Cause 1091 of 2012
Jurisdiction invoked
Employment and labour relations jurisdiction of the ELRC (Employment Act, 2007; Labour Institutions Act)

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, "Mark Abung’ana Litiema & 3 others v L. B. Sanghani Flats/Estate [2018] KEELRC 2213 (KLR)", Case Analysis (2018). Employment Cause filed 8th June 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2213/eng@2018-02-28

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