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ELRCDismissedStatement of Claim dated 5th March 2015· [2020] KEELRC 640 (KLR)

Nelson Kaita Boso v Aggrey Nyavanga & another [2020] KEELRC 640 (KLR)

Employment and Labour Relations Court
14 May 2020
LNLINNET NDOLO
1,657 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 Sh780,000 salary claim because he sued the wrong people—his real employer was someone else entirely.

What this practically means

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Executive summary

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The Claimant, Nelson Kaita Boso, sued Aggrey Nyavanga and Carolyne Bahati Innah, trading as Windrose Trading Agencies, claiming unpaid salary of Kshs. 780,000, unpaid leave, gratuity, one month's salary in lieu of notice, unpaid expenses and 12 months' salary as compensation for constructive termination alleged to have occurred by 31st December 2013. He claimed he had been engaged in October 2011 to register the business, later formalised on 1st May 2012 as Sales and Import Agent at Kshs. 30,000 monthly. The Respondents denied trading in the name of Windrose Trading Agencies, asserting that they too were employees of the business, whose real owner and financier was one Sven Hochman, and blamed the Claimant, as a purported equal partner/director, for the business's collapse. The court identified a single issue: whether an employment relationship existed between the Claimant and the Respondents. Relying on the test in Maurice Oduor Oketch v Chequered Flag, the court looked beyond party labels. It noted the anomaly of a Business Name purportedly having directors, and that the Claimant produced no evidence of payment of salary by either Respondent. His email correspondence complaining about unpaid salaries was addressed solely to Sven Hochman, in which he also complained on behalf of the Respondents themselves, showing he knew his real employer was Hochman. The court held no employment relationship existed between the Claimant and the Respondents, and the entire claim was dismissed with costs to the Respondents. The judgment was delivered electronically pursuant to COVID-19 directives.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondents

Holding

No employment relationship existed between the Claimant and Aggrey Nyavanga or Carolyne Bahati Innah; the Claimant's real employer was Sven Hochman

Reasoning

The employment agreement dated 1st June 2012 described all signatories as directors/employees, yet Windrose Trading Agencies was registered as a Business Name which could not legally have directors. The Claimant produced no evidence of payment of salary by either Respondent; instead his email correspondence about unpaid salaries was addressed solely to Sven Hochman. The court found that going beyond mere labels, the Claimant himself was aware his real employer was Sven Hochman.

p. 3
02

Whether the registration of the Respondents as proprietors of the business name sufficed to make them employers

Holding

Mere appearance of the Respondents' names on the certificate of registration was insufficient to establish an employment relationship

Reasoning

The court held that ruling in the Claimant's favour solely on the basis of the names on the certificate of registration would result in a grave injustice. Section 2 of the Employment Act defines an employee as a person employed for wages or salary, and no evidence of such payment by the Respondents was adduced.

p. 3

Legal principles established

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  • In determining the existence of an employment relationship, the court must look beyond the labels used by the parties and inquire into the actual facts and circumstances

Court orders

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  1. 1.The Claimant's entire claim is dismissed with costs to the Respondents

Authorities

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Legislation

  • Employment ActSection 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40

Cases cited (1)

  • Maurice Oduor Oketch v Chequered Flag
    [2013] eKLR
Jurisdiction invoked
Specialised jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007

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, "Nelson Kaita Boso v Aggrey Nyavanga & another [2020] KEELRC 640 (KLR)", Case Analysis (2020). Statement of Claim dated 5th March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/640/eng@2020-05-14

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