Bomu Athumani v Surraj Purr Limited [2020] KEELRC 725 (KLR)
The bottom line
#A Kenyan court dismissed a worker's entire unfair termination claim because he could not prove the construction company actually employed him.
What this practically means
#Executive summary
#Key legal issues
#Whether an employment relationship existed between the Claimant and the Respondent
No employment relationship was established; the Respondent denied employing the Claimant, who was claimed to be an employee of an independent contractor, and the Claimant adduced no independent evidence of employment
The Claimant pleaded a monthly salary of Kshs. 14,300 but testified to a daily rate of Kshs. 300 progressively increased to Kshs. 550, with no explanation for the departure. The Respondent's Director, Arvind Naran Vekarai, testified that painting works were contracted to Mussa Nassir Mwarika, an independent contractor, and Mwarika corroborated this, claiming the Claimant as his own employee. Relying on John Kamau Mburu v Program for Appropriate Technology in Health, the court held that working at the Respondent's sites did not by itself confer an employment relationship.
Whether the Claimant established unlawful termination of employment
The Claimant failed to prove the foundational employment relationship, so the unlawful termination claim fell away
Because the Claimant failed to adduce independent evidence supporting his assertion that he was the Respondent's employee, and his testimony was contradicted by two witnesses for the Respondent, he could not establish the employment relationship upon which a claim of unlawful termination could rest. The claim of unlawful termination and the associated remedies therefore failed and were dismissed with no order as to costs.
Whether the Claimant was entitled to the remedies sought
Not entitled; the entire claim was dismissed
Since the threshold issue of the employment relationship was not proved, none of the remedies claimed (accrued leave, notice pay, compensation, gratuity and general damages) could be awarded. The claim was dismissed in its entirety, with each party bearing its own costs.
Legal principles established
#- Not every work relationship translates into an employment relationship
- The burden of proving the existence of an employment relationship lies on the claimant
Court orders
#- 1.The Claimant's entire claim is dismissed
- 2.Each party will bear their own costs
- Jurisdiction invoked
- Specialised jurisdiction of the Employment and Labour Relations Court under the Employment Act (court described itself as exercising 'specialised jurisdiction'); jurisdiction challenged by the Respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bomu Athumani v Surraj Purr Limited [2020] KEELRC 725 (KLR)", Case Analysis (2020). Cause No 368 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/725/eng@2020-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.