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ELRCDismissedMemorandum of Claim dated 29th March 2017· [2019] KEELRC 2309 (KLR)

Immaculate Sawene v Dayang International Limited [2019] KEELRC 2309 (KLR)

Employment and Labour Relations Court
12 February 2019
LNLinnet Ndolo
878 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a worker's claim because she could not prove an employment relationship actually existed with the company.

What this practically means

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Executive summary

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The Claimant, Immaculate Sawene, sued Dayang International Limited claiming seven months' unpaid salary, pay in lieu of notice, leave pay, service pay, holiday pay, underpayment, general damages, a certificate of service, costs and interest. She averred that she was employed from 1st January 2016 as a Supervisor and later as Managing Director at Kshs. 20,000 per month, without a written contract or payslip, and that the Respondent's director, Zhang Ruming, unlawfully terminated her employment on 15th November 2016. The Respondent denied the claim, asserting that the Claimant was a lover of one of its directors and not an employee. The Respondent filed a Memorandum of Response but called no witness; the Claimant testified and called David Mwangi Muiruri, a legal assistant who had dealt with her in following up a criminal case involving the Respondent. The Court framed one issue: whether an employment relationship existed capable of enforcement by the Court, since its specialised jurisdiction under Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act depends on such a relationship. Applying the statutory definitions in Section 2 of the Employment Act and the decision in John Kamau Mburu v PATH, the Court found the mpesa transfers from Zhang inconsistent in value and timing to be salary, and held that the Claimant's involvement in the criminal case was explained by her romantic relationship with Zhang rather than employment. The claim was dismissed in its entirety with each party bearing their own costs.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondent capable of enforcement by the Court

Holding

No employment relationship existed; the Claimant failed to discharge her burden of proving one.

Reasoning

The Court held that its specialised jurisdiction depends on the existence of an employment relationship. The mpesa transfers from director Zhang Ruming to the Claimant were inconsistent in value and timing to constitute salary. Her role in instructing an advocate in the Respondent's criminal case was attributed to her romantic relationship with Zhang, not employment. Following the PATH case, working together does not create an employment relationship.

p. 2

Legal principles established

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  • The jurisdiction of the Employment and Labour Relations Court, being specialised, is dependent on the existence of an employment relationship.
  • A person laying a claim based on employment bears the burden of establishing the existence of an employment relationship.
  • The mere fact that parties work together does not automatically give rise to an employment relationship.

Court orders

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  1. 1.The Claimant's entire case fails and is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Employment and Labour Relations Court ActSection 12
  • Employment ActSection 2

Cases cited (1)

  • John Kamau Mburu v Program for Appropriate Technology in Health (PATH) & another
    [2015] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution as read together with Section 12 of the Employment and Labour Relations Court Act

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, "Immaculate Sawene v Dayang International Limited [2019] KEELRC 2309 (KLR)", Case Analysis (2019). Memorandum of Claim dated 29th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2309/eng@2019-02-12

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