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ELRCDismissedNot stated in judgment· [2019] KEELRC 2488 (KLR)

Samuel Wambugu Ndirangu v 2NK Sacco Society Limited [2019] KEELRC 2488 (KLR)

Employment and Labour Relations Court
16 January 2019
NMNzioki wa Makau
2,118 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a worker's wrongful termination claim because he couldn't prove he was actually an employee, not just a casual commission agent.

What this practically means

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Executive summary

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The Claimant sued the Respondent SACCO alleging that he was employed as a clerk from May 2011 at Kshs. 24,000/- per month and was unlawfully dismissed on 2nd October 2015. He sought September 2015 salary, five years' leave arrears, salary in lieu of notice, welfare contributions, housing allowance, damages for wrongful termination, NSSF and NHIF dues, a certificate of service, costs and interest. The Respondent denied employment entirely, contending the Claimant was a casual paid daily on commission by matatu owners, and urged dismissal with costs. At trial the Claimant, who had no letter of employment, testified he was paid Kshs. 800/- per day only for days worked, and relied on a bank statement and a Jijenge loan application form describing him as an employee. The Respondent's manager testified he was not on payroll and was a FOSA member accessing member salary products. The Claimant cited Section 10(7) of the Employment Act and the substantive justice and procedural fairness test; the Respondent relied on the control and integration tests, distinguishing contract of service from contract for services. The court applied the control test, held the indicia of employment - hire, payment of wages, power of dismissal and control - were absent, found the Claimant had failed to discharge the evidentiary burden, and dismissed the suit with no order as to costs.

Key legal issues

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01

Whether an employer-employee relationship existed between the Claimant and the Respondent

Holding

No employment relationship was established; the Claimant failed to discharge the evidentiary burden

Reasoning

The court applied the control test and examined the indicia of employment: hire, payment of wages, power of dismissal and control. The Claimant's own testimony that he was paid daily at a variable rate, only for days worked, and the absence of payroll or written contract pointed away from employment. Section 2 of the Employment Act defines an employee as one employed for wages or salary; the Claimant did not fit this paradigm.

p. 3
02

Whether membership of the SACCO/FOSA and the loan application form describing the Claimant as an employee proved employment

Holding

Membership and the form were not proof of an employer-employee relationship

Reasoning

The Respondent's evidence was that the Claimant was a FOSA member accessing products such as member salary advances, and that SACCO membership was open to the public. The Respondent did not correct the form's description of the Claimant as an employee, but the court found the overall indicia of employment absent, so the form alone could not establish the relationship.

p. 3

Legal principles established

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  • Where the element of control is lacking, and the person works at his own pleasure without definite conditions or hours of work, no employer-employee relationship exists
  • A positive finding of employment requires selection and engagement, proof of payment of wages, power of dismissal and power to control the employee's conduct

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 2 (definition of employee)
  • Employment ActSection 10(7)
  • Employment ActSection 35

Cases cited (5)

  • Edward Isedia Mukasia v Eldo Supermarket Ltd
    [2015] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Stanley Mungai Muchai v National Oil Corporation of Kenya
    [2012] eKLR
  • George Kamau Ndiritu & Another v Intercontinental Hotel
    [2015] eKLR
  • Everret Aviation Limited v Kenya Revenue Authority
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment dispute); specific enabling provision not cited in the judgment

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, "Samuel Wambugu Ndirangu v 2NK Sacco Society Limited [2019] KEELRC 2488 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2488/eng@2019-01-16

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