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ELRCDismissedCause Number 1076 of 2013· [2018] KEELRC 2233 (KLR)

Musau Kivuva v Mastermind Tobacco Limited [2018] KEELRC 2233 (KLR)

Employment and Labour Relations Court of Kenya
23 February 2018
ANAbuodha J. N.
1,233 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a worker's claim against Mastermind Tobacco because he could not prove he was actually their employee.

What this practically means

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Executive summary

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The claimant, Musau Kivuva, sued Mastermind Tobacco Limited in the Employment and Labour Relations Court at Nairobi (Cause 1076 of 2013) alleging he was employed as a general labourer at Kshs 9,000, was injured in an industrial accident in January 2013, was refused compensation, and in March 2013 was denied his salary because he had instituted legal action. The respondent denied the claimant was its employee. In evidence, the claimant described working as a mason, being hospitalised for three months, never taking leave, and disowned a contract signature in the respondent's bundle. The respondent's witness, Duncan Karimi, denied knowledge of the relevant cashier and testified that the respondent had a sister construction company, NGM, sharing directors, for which the claimant allegedly worked. The court observed the difficulty of identifying the actual employer where companies run multiple entities, and noted the claimant produced no document or identity card proving employment with the respondent. Strikingly, the middle of the judgment recites the facts of a different matter: a female claimant on probation, given two warning letters, whose services were terminated mutually with seven days' pay in lieu, with redundancy cited at her request to protect her job prospects. The court found that probationary termination mutual and the claim without merit, dismissing it with costs on 23 February 2018 (Abuodha J. N.).

Key legal issues

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01

Whether termination during probation was lawful

Holding

The court held the termination while on probation was mutual, with one week's notice or pay in lieu as provided in the appointment letter

Reasoning

The appointment letter allowed either party to terminate during probation on one week's notice or salary in lieu. The respondent proved two warning letters and email exchanges, none of which the claimant formally challenged. The court preferred the documentary evidence over bare denials and found the termination mutually agreed, with the redundancy reason adopted at the claimant's request to protect her future employment prospects.

p. 2
02

Whether the claimant was the respondent's employee

Holding

The court noted the absence of any document proving employment with the respondent, particularly given the existence of a sister company sharing directors

Reasoning

The claimant alleged employment by the respondent as a general labourer/mason and produced a hiring letter of no stated duration. The respondent's witness testified that the claimant worked for a sister construction company, NGM, which shared directors with the respondent. The claimant produced no identity card or document showing he worked for the respondent.

p. 1

Legal principles established

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  • Mere denial in oral testimony and unsubstantiated allegations (e.g. that an email account was hacked) do not rebut documentary evidence filed and not specifically refuted

Court orders

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  1. 1.The claim is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court first-instance jurisdiction over a summary claim for compensation (Cause Number 1076 of 2013)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Musau Kivuva v Mastermind Tobacco Limited [2018] KEELRC 2233 (KLR)", Case Analysis (2018). Cause Number 1076 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2233/eng@2018-02-23

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