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ELRCDismissedCause No 200 of 2017· [2020] KEELRC 1933 (KLR)

Linus Songwa Musamali v Bamco Construction Company [2020] KEELRC 1933 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret (High Court)
30 October 2020
ANAbuodha Jorum Nelson
1,300 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a construction worker hired through a labour subcontractor must sue the subcontractor, not the main contractor, for unfair termination.

What this practically means

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Executive summary

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The claimant, Linus Songwa Musamal, sued Bamco Construction Company alleging that he was orally employed as a caretaker from November 2014 at a monthly salary of Kshs 7,200 and that his services were wrongfully and unprocedurally terminated in November 2015 without payment of terminal dues. The respondent denied ever employing him, asserting that his services were supplied through a labour subcontractor, Daniel Musila Mbayi. At the hearing, the claimant admitted having no document evidencing employment by the respondent, that he was paid through petty cash, and that Laban Kitur paid his salary, while denying signatures on petty cash vouchers. The respondent's witnesses - Laban Kitur and Daniel Mbayi - testified to a labour outsourcing arrangement under which Mbayi supplied and paid workers, with Mbayi admitting the claimant was his casual employee for about two months. The court noted the growing practice of labour outsourcing in the construction industry and held that the claimant had produced no letter of appointment or proof of an employment relationship with the respondent, and that the proper party to any unfair termination claim was the subcontractor, Mbayi. The court further observed that claims for leave, underpayment and overtime were raised for the first time in the heads of claim without any pleaded foundation. The claim was found without merit and dismissed with costs to the respondent.

Key legal issues

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01

Existence of an employment relationship between claimant and respondent

Holding

No employment relationship was established; the claimant failed to prove he was the respondent's employee

Reasoning

The claimant produced no letter of appointment or other proof of employment with the respondent. The respondent exhibited a labour outsourcing contract with Daniel Musila Mbayi, who testified and admitted employing the claimant as a casual labourer and paying workers through petty cash vouchers. The claimant denied signing the vouchers yet admitted being paid through them. On the evidence, the employer was the subcontractor.

p. 2
02

Liability for alleged unfair termination in a labour outsourcing arrangement

Holding

Any claim for unfair termination lay against the outsourcing subcontractor, not the respondent contractor

Reasoning

The court recognised that labour outsourcing is common in the construction industry where work is project-based. The respondent reasonably demonstrated a written labour outsourcing contract with Mr. Mbayi, who came to court and testified to supplying labour. The claimant merely alleged an employment relationship with the respondent without substantiating it, so the proper defendant was the subcontractor.

p. 2

Legal principles established

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  • Where a contractor has a labour outsourcing contract with a subcontractor who supplied the labour, the subcontractor and not the contractor is the proper party liable to be sued by outsourced workers for unfair termination

Court orders

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  1. 1.The claim is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (established to hear employment and labour relations causes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Linus Songwa Musamali v Bamco Construction Company [2020] KEELRC 1933 (KLR)", Case Analysis (2020). Cause No 200 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1933/eng@2020-10-30

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