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ELRCDismissed· [2019] KEELRC 2546 (KLR)

Samuel Wambugu Ndirangu v 2NK Sacco Society Limited [2019] KEELRC 2546 (KLR)

Employment and Labour Relations Court
16 January 2019
NMNzioki wa Makau
2,120 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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The Employment Court in Nyeri dismissed a worker's claim against 2NK Sacco because he could not prove he was actually an employee.

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 until his summary dismissal on 2nd October 2015, and claiming terminal dues including September 2015 salary, leave arrears, salary in lieu of notice, welfare contributions, housing allowance, damages for wrongful termination, NSSF and NHIF dues, a certificate of service and costs. The Respondent denied that the Claimant was ever its employee, contending he was a casual commission agent at the stage paid daily by matatu owners, and urged dismissal of the suit with costs. The Claimant testified that he earned Kshs. 800/- per day worked, produced a bank statement and a Jijenge loan application form describing him as an employee, and relied on Section 10(7) and Section 35 of the Employment Act and the substantive-and-procedural fairness test. The Respondent's manager testified he was a casual not on the payroll, paid from stage commissions. The Respondent relied on authorities distinguishing a contract of service from a contract for services and on the control and integration tests. Applying the control test and the definition of 'employee' in Section 2 of the Employment Act, the court found the indicia of employment - selection and engagement, payment of wages, power of dismissal and power to control conduct - largely absent. The bank statement did not support the asserted monthly salary, and daily payment of Kshs. 800/- was consistent with casual engagement. The Claimant having failed to discharge the evidentiary burden, the suit was dismissed 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

The court held that the indicia of employment were largely absent; the Claimant was paid per day worked, was not on the payroll, and was not subject to definite conditions or hours of work

Reasoning

The court applied the control test under Section 2 of the Employment Act, examining selection and engagement, payment of wages, power of dismissal and power to control conduct. The Claimant's own evidence of daily payment of Kshs. 800/- per day worked, absence of a contract, absence of payslips and fluctuating pay pointed away from employment. The bank statement exhibited did not corroborate a monthly salary of Kshs. 24,000/-. The evidentiary burden lay on the Claimant and was not discharged.

p. 2
02

Whether the Claimant was wrongfully and unlawfully dismissed

Holding

Having failed to establish employment, the claim of wrongful dismissal could not stand and the suit was dismissed

Reasoning

Wrongful termination under Sections 35, 41 and 45 of the Employment Act presupposes an employment relationship. Since the court found insufficient indicia of employment, the procedural and substantive fairness arguments were academic. The claim for damages for wrongful termination and all ancillary terminal dues failed with the principal claim.

p. 2

Legal principles established

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  • The existence of an employer-employee relationship depends on whether the employer has control over the employee; where control is lacking the relationship does not exist
  • A positive determination of employment requires selection and engagement, proof of payment of wages, power of dismissal and power to control the employee's conduct
  • The party asserting an employment relationship bears the evidentiary burden of proving it

Court orders

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

Authorities

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Legislation

  • Employment ActSection 2
  • 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 over employment and labour relations claims

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 2546 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2546/eng@2019-01-16

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