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ELRCDismissedNot stated in the judgment· [2019] KEELRC 1123 (KLR)

Caroline Khamasi Sirigoi v Jeniffer Nzambi Munuve [2019] KEELRC 1123 (KLR)

Employment and Labour Relations Court
5 July 2019
MOMaureen Onyango
2,283 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 house help's unfair dismissal claim because she couldn't prove she was a permanent employee, not a casual worker.

What this practically means

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Executive summary

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The claimant, Caroline Khamasi Sirigoi, sued the respondent alleging she was employed as a house help from 13th February 2004 at the respondent's Sunview Estate residence and unfairly dismissed on 15th November 2011. She claimed Kshs.1,055,112 comprising underpayments, leave, leave travelling allowance, public holidays pay, overtime, termination notice, severance pay and gratuity, plus costs and interest. The respondent denied employing the claimant on any permanent terms, asserting she only occasionally engaged her on casual piece-rate basis (ironing, hoovering and compound cleaning) at Kshs.200 or 250 per task, paid on completion, and that both she and her husband left home at 7 am returning at 6.30 pm. The claimant testified and called two witnesses; the respondent and her husband testified for the defence. The court framed three issues: whether the claimant was employed on regular or casual terms, whether she was unfairly terminated, and her entitlement to the prayers sought. Applying section 47(5) of the Employment Act, 2007, the court placed the burden of proof on the employee. It found the claimant's witnesses' evidence illogical and contradictory, and agreed the nature of the work did not require a permanent worker. The court held the claimant failed to prove permanent employment, unfair termination, or any of the claimed benefits, and dismissed the entire claim with no orders for costs.

Key legal issues

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01

Whether the claimant was a permanent (regular) employee or a casual piece-rate worker

Holding

The claimant failed to prove she worked daily from 7.30 am to 6.30 pm or was engaged on permanent terms; the nature of the work (ironing, hoovering, compound cleaning) did not require a permanent worker

Reasoning

The court found the claimant's evidence unpersuasive against the respondent's and RW2's testimony that both left home at 7 am and returned at 6.30 pm, leaving no one at home. The claimant's witnesses gave contradictory and illogical evidence about when they met her, worked with her and their working hours. The court agreed that ironing, hoovering a carpet and compound cleaning done weekly would not require daily engagement.

p. 4
02

Burden of proof in unfair termination claims

Holding

The employee bears the burden of proving unfair termination; the claimant did not discharge this burden

Reasoning

Applying section 47(5) of the Employment Act, 2007, the court held that the claimant, who alleged unfair dismissal, had to prove the employment relationship on the terms alleged and the unfair termination. Since the claimant failed to prove regular employment, the claim for unfair termination and the attendant benefits collapsed.

p. 3

Legal principles established

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  • In complaints of unfair termination, the burden of proving that unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer

Court orders

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  1. 1.The entire claim is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance statement of claim for unfair termination and employment benefits)

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, "Caroline Khamasi Sirigoi v Jeniffer Nzambi Munuve [2019] KEELRC 1123 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1123/eng@2019-07-05

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