Daniel Kimanzi Maithya v Inter-Security Service Limited [2019] KEELRC 1832 (KLR)

Employment and Labour Relations Court

8 April 2019

NMNzioki wa Makau

849 words in judgment

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The bottom line

A Kenyan court dismissed a guard's unfair termination claim because the company he sued was not his employer when he was dismissed.

What this practically means

Executive summary

The Claimant, a guard formerly stationed at the National Cereals and Produce Board (NCPB) stores at Kiganjo, sued the Respondent, a security services firm, alleging unfair and unlawful termination of his employment on 31st December 2015 by the NCPB manager. He sought one month's salary in lieu of notice (Kshs. 7,800/-), service pay, leave dues for 2015 (Kshs. 7,800/-), payment for public holidays (Kshs. 2,600/-) and compensation for unlawful dismissal (Kshs. 93,500/-), plus costs. The Respondent defended the suit on the basis that it had provided security services to NCPB under a service level agreement that expired in 2015, that the Claimant's contract ended with it, and that the termination was effected by an NCPB employee, not the Respondent; it also invoked the control test to deny that it was the employer. The parties disposed of the suit by written submissions under Rule 21 of the court's Rules. The court found that the service level agreement ran from 5th September 2014 to 31st May 2015, that there was no exhibit tying the Claimant's hire to that term, and that the alleged dismissal occurred on 31st December 2015, after the contract had expired, and was effected by the NCPB manager. Adopting the control test from the cited authorities, the court held the Respondent had no control over the Claimant at the material time. The suit was dismissed with each party bearing their own costs.

Key legal issues

Identity of the employer under the control test

Holding

The Respondent was not the Claimant's employer at the time of dismissal because the service level agreement with NCPB had expired on 31st May 2015 and the Respondent had no control over the Claimant when he was dismissed on 31st December 2015 by the NCPB manager.

Reasoning

The Respondent exhibited a service level agreement with NCPB running from 5th September 2014 to 31st May 2015, and there was no exhibit tying the Claimant's hire to that term. The Claimant himself asserted that his dismissal on 31st December 2015 was by the manager of NCPK stores at Kiganjo. Applying the control test, the court found the Respondent had no control over, nor capacity to direct, the Claimant at the time of dismissal, so the employment relationship with the Respondent had ended.

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Whether the suit disclosed a cause of action against the Respondent

Holding

The suit failed against the Respondent because the Claimant was non-suited; the alleged wrongful dismissal was by a third party (NCPB).

Reasoning

The Respondent submitted, citing the control test authorities, that termination was by an employee of NCPB and not the Respondent, and that the suit disclosed no cause of action against it. The court agreed, holding that the contract with the Respondent had expired before the alleged dismissal and that the dismissal was effected by someone other than the Respondent. The suit was accordingly dismissed.

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Legal principles established

The control test delineates who is an employer - an employer is one who has the power or right to control and direct how work is to be performed
Where termination is effected by a party other than the alleged employer with whom no employment relationship subsisted at the material time, the suit against that alleged employer must fail

Court orders

1.The suit is dismissed
2.Each party is to bear their own costs

Authorities

Legislation

Employment ActSection 35
Rules of the Employment and Labour Relations CourtRule 21

Cases cited (4)

Kenya Petroleum Oil Workers Union v Francis Kiarie Kinyanjui t/a Suncor Gas & Petroleum
[2014] eKLR
Christine Adot Lopeiyo v Wycliff Mwathi Pere
[2013] eKLR
Stanley Mungai Muchai v National Oil Corporation of Kenya
[2012] eKLR
Mwalimu Kalimu Gamumu & 35 Others v Coastline Safaris & 2 Others
[2013] eKLR

Jurisdiction invoked: Original employment and labour relations jurisdiction of the Employment and Labour Relations Court; suit disposed of by written submissions in line with Rule 21 of the Rules of this court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Daniel Kimanzi Maithya v Inter-Security Service Limited [2019] KEELRC 1832 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1832/eng@2019-04-08

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