Job Onyikwa Nyambarora v Lake Gas Limited [2020] KEELRC 868 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was an employment relationship between the parties
- 2.Whether there was unfair termination of employment
- 3.Whether the remedies sought are due
Key legal issues
#Whether an employment relationship existed between the claimant and the respondent
No employment relationship was proved; the M-Pesa payment records showed no consistent wage payments from the respondent and the letter of recommendation was not issued by the respondent
The court analysed the claimant's M-Pesa records and found payments from different persons with no common thread of wages from the respondent. The defence witness admitted knowing the claimant and occasionally sending him cash, but testified these were transactional. The NSSF statement did not confer employment status. Without a common thread of wage payments from the respondent or its linked persons, the claim's averments of daily/weekly wages were unsupported.
Whether the claimant proved unfair termination
Having failed to prove employment, the burden under section 47(5) was not discharged and the respondent had no burden to justify termination
Section 47(5) places the burden of proving unfair termination on the employee. Since the claimant did not prove an employment relationship, nor call evidence to establish that any employment with Miruka was terminated unfairly, the respondent's burden to justify the grounds of termination fell away.
Whether the remedies sought were due
None of the remedies were due: without an employment relationship the court lacked authority to assess the claims, and a certificate of service issues only where employment exists
The court held that absent an employment relationship it had no authority to assess the claims. Even assuming employment, the claimant's own evidence that a cylinder was lost on his watch constituted good cause for termination for neglect of duty. General claims for overtime, underpayment and leave failed for want of particulars of hours worked.
Legal principles established
#- An NSSF statement is not evidence of an employment relationship
- The burden of proving unfair termination rests on the employee under section 47(5) of the Employment Act
Court orders
#- 1.The suit is struck out for want of proof of an employment relationship between the parties
- 2.No orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute over employment relationship, unfair termination and terminal dues)
Relief refused
#Compensation for unfair termination
No employment relationship was proved; even if there had been one, failure to take stock of LPG cylinders amounted to good cause for termination
Notice pay at Ksh.11,633.17
Not due absent an employment relationship
Underpayment of Ksh.145,332.91
General claims for underpayment unsupported by proof of employment relationship or specific hours
Annual leave of Ksh.18,775.89
Claim unsupported absent proof of employment
Certificate of service
Only issues where an employment relationship exists
Costs
No orders on costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There is no common thread of wage or salary payments from the entity of the respondent or persons directly linked to the respondent paying the claimant a wage
Such statement is not evidence of employment. The statement attached does not confer employment status as employment is regulated under a different statutory regime separate from the NSSF Act.
Without an employment relationship between the parties, the court is denied authority to assess the claims set out.
Accordingly, without there being any employment relationship between the parties, the suit is hereby struck out. No orders on costs.
Issues in the judgment
#The judgment records the claimant's testimony as reporting to work on 18th, 19th–22nd and 24th April 2017, while the narrative of the claim refers to events on 15th and 24th March 2017; dates are internally inconsistent
The court records that the claimant filed written submissions for a different matter, ELRC No.418 of 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Job Onyikwa Nyambarora v Lake Gas Limited [2020] KEELRC 868 (KLR)", Case Analysis (2020). Cause No. 282 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/868/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.