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ELRCDismissedNot stated in judgment· [2019] KEELRC 791 (KLR)

Kutulo Leonard Omito v The David Shedrick Wildlife Trust [2019] KEELRC 791 (KLR)

Employment and Labour Relations Court
26 September 2019
MNM. N. Nduma
1,651 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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An Employment Court in Bungoma dismissed a worker's unfair dismissal claim because he could not prove an employment relationship existed at all.

What this practically means

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Executive summary

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The Claimant sued a wildlife conservation NGO seeking compensation for alleged unlawful and unfair dismissal. He claimed he was employed on 19th September 2013 as an intelligence expert on a ten-year contract to September 2022, at a monthly salary, and that his services were terminated by email in April 2014 after he had established intelligence networks credited with recovering ivory and rhino horn. He relied on a letter dated 19.9.2013 allegedly written by one Nick Trend. The Respondent denied the employment relationship, called RW1 (Nick Trend), who said the letter was merely an introduction to a landlord and that the words 'Ten years contract to September 2022' were forged; RW2 (administrative manager) said the intelligence program was run independently by Trend with Respondent funding only and was closed in April 2014 for lack of results; and RW3, a forensic document examiner, found the subject line of the letter was written by a different author and the letter manipulated and photocopied. The court framed two issues: whether the Claimant was an employee whose employment was unlawfully terminated, and whether he was entitled to relief. It found the Claimant was an undercover agent recruited by RW1 on a trial basis, the letter was a forgery, and the Claimant was not a truthful witness. The claim was dismissed with costs.

Key legal issues

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01

Existence of an employment relationship

Holding

The Claimant failed to prove he was an employee of the Respondent; he was an undercover agent recruited independently by RW1 on a trial basis, and the letter of appointment was a forgery

Reasoning

The court weighed the Claimant's testimony against RW1, RW2 and RW3. RW1 wrote the 19.9.2013 letter as a letter of introduction to a landlord; a forensic document examiner found the words 'Ten years contract to September 2022' were added by a different author. The Respondent rebutted the Claimant's case, showing the engagement was a trial-based intelligence-gathering arrangement, extended depending on results, and that the Claimant was paid for work done for RW1, not the Respondent.

p. 3
02

Unlawful and unfair termination

Holding

No unlawful or unfair termination was established since no employment relationship with the Respondent existed

Reasoning

Having found the Claimant was recruited by RW1 as an undercover agent on a three-month trial, extended for a further three months and then stopped for lack of results, the court held that no contract of employment with the Respondent existed that could have been unlawfully terminated. The Claimant also never sued RW1 or claimed unpaid salary.

p. 3

Legal principles established

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  • A party seeking compensation for unlawful termination must first prove existence of an employment relationship on a balance of probabilities

Court orders

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  1. 1.The prayer for compensation for unlawful dismissal is dismissed
  2. 2.The suit is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (statutory basis not expressly cited in 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, "Kutulo Leonard Omito v The David Shedrick Wildlife Trust [2019] KEELRC 791 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/791/eng@2019-09-26

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