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ELRCDismissedMemorandum of claim dated 25th November 2014, filed 2nd December 2014· [2019] KEELRC 1622 (KLR)

Kenya Hotels and Allied Workers Union v Crescent Hotel [2019] KEELRC 1622 (KLR)

Industrial Court (Employment and Labour Relations Court)
14 May 2019
MOMAUREEN ONYANGOMNMATHEWS NDERI NDUMA
1,402 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed a union's unfair termination claim because the workers had no proof, like payslips, that they were ever employed.

What this practically means

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Executive summary

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The claimant trade union brought a memorandum of claim dated 25th November 2014 on behalf of three grievants - Calvin Seda (waiter), Peter Ogutu (night watchman) and Elgah Anyango (waitress) - alleging they were declared redundant and unfairly terminated by the respondent in January and February 2014. The claimant pleaded breaches of Article 41 of the Constitution and sections 28, 35, 40, 41, 43 and 45 of the Employment Act, plus non-compliance with wage orders, and sought reinstatement or, alternatively, terminal benefits including notice pay, leave, service pay, severance pay, public holiday pay, underpayment of wages and 12 months' compensation, together with certificates of service. The dispute had earlier gone through unsuccessful conciliation before Mr. Joel Omweno of the Kisumu County Labour Office, who issued a Certificate of Disagreement on 7th August 2014. The respondent denied ever employing any of the grievants. Its defence was not prosecuted and its case was closed on 26th July 2017 in its absence. The court held that apart from the pleadings and the grievants' testimony, and letters written by the claimant itself, there was no independent evidence of the employment relationship - no payslips, payment records or disciplinary letters. Applying sections 107 and 108 of the Evidence Act as restated in Kipkebe Limited v. Peterson Ondieki Tai (2016) eKLR, the court found the claimant had failed to prove the foundational employment relationship and could not proceed to consider unfair termination or remedies. The claim was dismissed with no orders as to costs.

Key legal issues

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01

Burden of proving the employment relationship

Holding

The claimant failed to discharge the burden of proving that the grievants were employees of the respondent; the claim was therefore dismissed

Reasoning

Apart from the memorandum of claim and the grievants' testimony, only letters from the claimant to the respondent or Ministry of Labour were filed. With the respondent denying employment and adducing no evidence, the claimant was required to produce independent proof such as payslips or payment evidence. None was produced, leaving the court in doubt as to whether an employment relationship existed, so unfairness and remedies could not be considered.

p. 4
02

Application of sections 107 and 108 of the Evidence Act on burden of proof

Holding

The court applied the principle that he who asserts must prove, citing Kipkebe Limited v. Peterson Ondieki Tai (2016) eKLR

Reasoning

The court adopted the authority's restatement of sections 107 and 108 of the Evidence Act: whoever desires a court to give judgment as to a legal right dependent on facts must prove those facts, and the burden lies on the person who would fail if no evidence were given on either side. The claimant, unable to prove the foundational employment relationship, necessarily failed.

p. 5

Legal principles established

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  • Where the respondent denies employing the claimants and adduces no evidence, the claimant must produce independent proof of the employment relationship such as a payslip, evidence of payment or a letter of discipline

Court orders

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  1. 1.The claim is dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment Act, 2007Sections 28, 35, 40, 41, 43, 45, 50
  • Industrial Court Act, 2011Section 12
  • Labour Institution Act, 2007Section 15
  • Evidence ActSections 107, 108

Cases cited (1)

  • Kipkebe Limited v. Peterson Ondieki Tai (2016) eKLR
    (2016) eKLR
Jurisdiction invoked
Section 50 of Employment Act 2007, Section 12 of the Industrial Court Act 2011 and Section 15 of the Labour Institution Act 2007 (invoked by claimant); Article 41 of the Constitution cited

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Hotels and Allied Workers Union v Crescent Hotel [2019] KEELRC 1622 (KLR)", Case Analysis (2019). Memorandum of claim dated 25th November 2014, filed 2nd December 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1622/eng@2019-05-14

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