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ELRCDismissedOriginating Summons (High Court, filed 13th April 2005)· [2018] KEELRC 2236 (KLR)

B O v R S S [2018] KEELRC 2236 (KLR)

Employment and Labour Relations Court
2 March 2018
MNMathews N. NdumaMOMaureen Onyango
2,191 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed an employee's claims against her former boss personally because her real employer was a separate company.

What this practically means

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Executive summary

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The suit, commenced by originating summons on 13th April 2005 under sections 70, 74, 82 and 84 of the former Constitution and the 2001 Protection of Fundamental Rights Rules, was transferred from the High Court to the Employment and Labour Relations Court by Justice Jarus Ngaah on 26th February 2015. The plaintiff alleged she was employed by the defendant in September 2000, had a love affair with him, was deliberately infected with HIV, and that her employment was terminated on 12th November 2004 upon disclosure of her status, contrary to her rights to life, human dignity and freedom from discrimination. She relied on the Indian authorities MX vs ZY and X vs State Bank of India on HIV-based employment discrimination. The defendant denied employing her personally, asserting she worked for S Holdings Limited (owned by his family) and later Specialized Air Conditioning Limited, from which she was summarily dismissed on 22nd November 2004 for absenteeism, diversion of company work and stealing. He produced a certificate showing he and his wife tested HIV negative. The court framed three issues: employment relationship, violation of rights, and remedies. It found the burden lay on the plaintiff under sections 107-112 of the Evidence Act; she proved no employment relationship with the defendant personally, the employers being separate legal entities. The infection and discrimination claims were also unproved and misconceived as against him. The suit was dismissed with no order as to costs. Judgement was signed by Mathews N. Nduma, Judge, in Kisumu on 23rd February 2018 and delivered by Maureen Onyango, Judge, in Nairobi on 2nd March 2018.

Key legal issues

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01

Whether the Respondent personally employed the Plaintiff

Holding

He did not; she worked for S Holdings Limited and later Specialized Air Conditioning Limited, distinct legal entities

Reasoning

The court found the plaintiff produced no documents showing the Respondent ran any business in his personal capacity. The Respondent demonstrated she initially worked for a family-owned limited liability company in which he held no shares, and was later dismissed by Specialized Air Conditioning Limited by letter signed on company letterhead. The separate legal personality of the employer companies defeated the personal claim.

p. 3
02

Whether the Respondent violated the Plaintiff's fundamental rights under sections 70, 74 and 82 of the former Constitution

Holding

No violation proved; the Respondent rebutted the allegations of infection, torture and discrimination

Reasoning

The Respondent produced a certificate showing he and his wife tested HIV negative, discrediting the infection narrative. The discrimination claim was misconceived as against the Respondent personally since the suit should have been brought against the employer. The plaintiff failed to discharge the burden of proof on a balance of probabilities.

p. 3

Legal principles established

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  • The burden of proving employment and violation of rights rests on the plaintiff on a balance of probabilities under sections 107, 108, 109 and 112 of the Evidence Act
  • A claim against a company cannot be sustained personally against a director/shareholder where the employer is a separate legal entity

Court orders

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  1. 1.The suit is dismissed as against the Respondent
  2. 2.The claim of unlawful dismissal from employment against the Respondent is dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya 1969sections 70, 74, 82, 84
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual Practice and Procedure) Rules, 2001
  • Evidence Act, Cap 80 Laws of Kenyasections 107, 108, 109, 112

Cases cited (2)

  • MX vs ZY
    AIR 1997 BOM 406
  • X vs State Bank of India
    (2002)
Jurisdiction invoked
Constitution of Kenya 1969, sections 70, 74, 82 and 84 read with the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual Practice and Procedure) Rules, 2001

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, "B O v R S S [2018] KEELRC 2236 (KLR)", Case Analysis (2018). Originating Summons (High Court, filed 13th April 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2236/eng@2018-03-02

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