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ELRCDismissedNot stated in the judgment extract· [2019] KEELRC 754 (KLR)

Julius Ongosi Esau v Mary Wambui Kimani t/a Flomic Services [2019] KEELRC 754 (KLR)

Employment and Labour Relations Court
19 September 2019
HWHellen Wasilwa
1,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan security guard lost his unfair termination claim because he could not prove who actually employed him.

What this practically means

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Executive summary

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The Claimant sued alleging that the Respondent terminated his services unfairly for demanding salary arrears from February 2013 to July 2014. He sought a declaration of unlawful termination, terminal benefits of Kshs. 1,201,836.44, twelve months' gross salary as compensation, a certificate of service, costs and interest. The Respondent denied ever employing the Claimant, asserting that she worked as a senior supervisor at Laimmemo Security & Investigators, that Flomic Services Limited (incorporated 22 September 2010) traded in real estate and not security services, and that the single M-pesa transaction and the guard book produced did not prove an employment relationship with her. At trial the Claimant testified that he worked as a security guard at Kinoo and Eden Apartments for 3 years and 8 months, dealing directly with the Respondent, without an appointment letter. The Respondent and her husband testified for the defence. The court found that the Respondent denied the employment relationship and that the Claimant produced no evidence showing he was employed by her. Without proof of the employment relationship, the claims of unfair termination and terminal dues could not stand. The court dismissed the claim with no order of costs. Judgment was delivered on 19 September 2019 by Hellen Wasilwa, J.

Key legal issues

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01

Existence of an employment relationship between the Claimant and the Respondent

Holding

The Claimant failed to prove he was employed by the Respondent; the claim was dismissed on that ground alone.

Reasoning

The Respondent denied employing the Claimant, asserting she was herself a supervisor at Laimmemo Security & Investigators and that Flomic Services Limited traded in real estate, not security services. Although the Claimant produced a guard book and an M-pesa transaction, the court found no evidence linking him to the Respondent as employer. The claim therefore failed without any need to determine the fairness of the alleged termination.

p. 3

Legal principles established

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  • A claimant bears the burden of producing evidence to prove the employment relationship alleged against the respondent

Court orders

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  1. 1.The claim is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 9
  • Employment Actsection 10(7)
  • Employment Actsection 47(5)
  • Employment Actsection 45(4)(b)
  • Employment Actsection 35
  • Employment Actsection 28
  • Employment Actsection 31
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007); Article 162(2)(a) not expressly cited 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, "Julius Ongosi Esau v Mary Wambui Kimani t/a Flomic Services [2019] KEELRC 754 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/754/eng@2019-09-19

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