Huka Gababa Elema v Patel Dahyabhai [2020] KEELRC 1432 (KLR)
The bottom line
#A watchman claiming five years of unpaid wages lost because his Mpesa records proved only short-term piece work, not continuous employment.
What this practically means
#Executive summary
#Key legal issues
#Existence and terms of an employment relationship
The claimant was not a continuous monthly employee but a piece work employee engaged from June 2013 to December 2013.
The claimant relied on an Mpesa statement to prove employment from 2009 to 2014 at Kshs.5,000 per month. The payments shown were irregular, ranging from Kshs.100 to Kshs.9,000, beginning only on 16.6.2013 and ending on 27.12.2013, corroborating the respondent's evidence that he took possession of the premises in 2013 and hired the claimant for piece work. The claimant also failed to prove that John Kinyanjui, who paid him earlier, was the respondent's agent, not calling him or the former caretaker as witnesses.
Whether the claimant was unfairly dismissed
No unfair dismissal was established; the burden under section 47(5) of the Employment Act was not discharged.
Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee. The claimant produced no termination letter or eyewitness, and admitted in cross-examination that he could not recall the date or month in 2014 when he was allegedly dismissed. He also failed to prove that he worked for the respondent in 2014 at all. Given his status as a piece work employee whose last payment was in December 2013, no dismissal in 2014 could be found.
Entitlement to reliefs
All reliefs sought were refused because the foundational employment relationship was not proved as alleged.
Having found that the claimant was a piece work employee who never worked continuously for one month, the court held he was not entitled to the terminal dues, compensation for unfair termination, costs or interest claimed. The precedents on the employer's duty to keep and produce records were distinguished because the claimant had not first established continuous employment to trigger that duty.
Legal principles established
#- He who alleges must prove his allegation on a balance of probability
- Under section 47(5) of the Employment Act, the burden of proving unfair termination lies on the employee alleging it
- Employer's statutory duty to produce employment records under section 10(7) of the Employment Act (relied on by claimant but distinguished on the facts)
Court orders
#- 1.The suit is dismissed with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act); specific constitutional provision not cited in judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Huka Gababa Elema v Patel Dahyabhai [2020] KEELRC 1432 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1432/eng@2020-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.