Casement Industries Limited v Patrick Kithome Mutuluki [2019] KEELRC 2068 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an employer-employee relationship existed between the parties
The trial magistrate erred in finding an employment relationship; the respondent failed to prove employment on a balance of probability
The respondent alleged employment from 1981 by Aluminum Casement Limited, but the appellant was only incorporated on 26.11.1998 and no connection between the two companies was established. No wage or salary was proved; vouchers allegedly in the advocates' custody were not produced; supervisors and the relationship with contractor John Were were not established. The essential terms and termination of the alleged employment were equally not proved.
Effect of the appellant paying the respondent's medical bill
The payment did not infer an employment relationship
The defence evidence explained that the medical bill of Kshs. 150,000.00 was paid as assistance requested by DW, to be refunded by contractor John Were, who had assigned the respondent the fitting work. John Were was not the appellant's employee, and the respondent was a freelance fitter sub-contracted by Were. The payment was therefore consistent with a contractor relationship, not employment.
Whether third party proceedings were necessary regarding John Were
Third party proceedings did not apply
Order 1 rule 15 of the Civil Procedure Rules envisages third party notice where a defendant claims contribution or indemnity from a person not party to the suit. Here the purported third party John Were was deceased, and the appellant's case was not that Were was liable as main contractor, but that Were had sub-contracted, not employed, the respondent.
Legal principles established
#- Proof of payment of a wage or salary is essential to establishing an employment relationship
- Payment of a claimant's medical bill does not, by inference, establish an employer-employee relationship where an alternative explanation exists
Court orders
#- 1.The appeal is allowed with costs of the appeal to the appellant
- 2.The judgment given on 13.10.2016 together with the decree and all consequential proceedings flowing from the judgment and decree are set aside
- 3.The suit before the trial court is dismissed with costs
- On appeal from
- Senior Principal Magistrate's Court (Hon. E.K. Usui)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment (memorandum of appeal); no specific provision cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Casement Industries Limited v Patrick Kithome Mutuluki [2019] KEELRC 2068 (KLR)", Case Analysis (2019). Not stated in judgment (memorandum of appeal filed 17.10.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2068/eng@2019-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.