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ELRCDismissedMemorandum of Claim dated 12th September 2017, amended 13th April 2018· [2019] KEELRC 175 (KLR)

Robert Kyalo Musyoka v Cargill Kenya Limited (Cause 33 of 2018) [2019] KEELRC 175 (KLR)

Employment and Labour Relations Court
11 December 2019
LNLINNET NDOLO
931 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 claim because he couldn't prove he was actually an employee, not just a casual worker.

What this practically means

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Executive summary

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The Claimant, Robert Kyalo Musyoka, sued Gargill Kenya Limited claiming compensation for unlawful termination of employment, alleging he was employed from July 2007 at a monthly salary of Kshs. 27,000 until 22nd September 2015 when his employment was terminated without notice or a hearing. He sought one month's salary in lieu of notice, unpaid annual leave, twelve months' salary as compensation, service pay, costs and interest. The Respondent denied the employment relationship, asserting that the Claimant was part of a labour 'gang' recruited by a 'gang leader' under an agreement between the Distributive and Allied Trades Association and the Kenya Shipping, Clearing and Warehouses Workers Union, with no continuity of service, and that it ceased contracting gang leaders in July 2014, outsourcing labour from Insight Management Consultants Limited. The court framed one issue: whether an employment relationship existed capable of enforcement. Applying the definitions in Section 2 of the Employment Act, 2007 and the principle that the burden of proving a contract of service rests on the person alleging it, the court found that the Claimant, apart from his own word, produced no independent evidence of employment. It held that not every work relationship amounts to employment, and that performing tasks for the Respondent did not automatically make the Claimant an employee. The entire claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondent

Holding

The Claimant failed to prove an employment relationship; performing tasks for the Respondent as part of a labour 'gang' did not make him an employee.

Reasoning

The court applied the statutory definitions of 'employee', 'employer' and 'contract of service' under Section 2 of the Employment Act, 2007. Relying on Joseph Otieno Ogutu & 24 others v Allied Wharfage Ltd, it held that the burden of proving a contract of service lies on the claimant. Apart from his own word, the Claimant adduced no independent evidence of an employment relationship. The court noted that not every work relationship gives rise to employment, and that being given tasks by the Respondent did not automatically make him an employee.

p. 2

Legal principles established

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  • The onus of proving employment under a contract of service lies with the person who alleges its existence.
  • Not every work relationship gives rise to an employment relationship.

Court orders

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  1. 1.The Claimant's entire claim is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 2 (definitions of employee, employer, contract of service)

Cases cited (2)

  • Joseph Otieno Ogutu & 24 others v Allied Wharfage Ltd & another
    [2016] eKLR
  • John Kamau Mburu v Program for Appropriate Technology in Health & another
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims

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, "Robert Kyalo Musyoka v Cargill Kenya Limited (Cause 33 of 2018) [2019] KEELRC 175 (KLR)", Case Analysis (2019). Memorandum of Claim dated 12th September 2017, amended 13th April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/175/eng@2019-12-11

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