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ELRCDismissedCause No 1964 of 2016· [2021] KEELRC 302 (KLR)

Wago Roba Molu v Personal Systems Computer Limited [2021] KEELRC 302 (KLR)

Employment and Labour Relations Court of Kenya
30 November 2021
2,166 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a security guard's unfair termination claim because he sued the company, but the evidence showed a director—not the company—was his real employer.

What this practically means

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Executive summary

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The claimant sued the respondent claiming reliefs for unlawful verbal termination of employment, alleging he was employed as a security guard from about 19 February 2000 and verbally terminated on or about 28 February 2016 by Mr Mahmood Khambiye, a director of the respondent. The respondent denied ever employing the claimant, producing a certificate of incorporation dated 18 June 2007 showing it did not exist in 2000, stating it had never employed security guards and had never operated in Parklands. Each party called one witness. The claimant relied on a staff identity card, which the respondent disputed as a forgery. The court framed three issues: employment relationship, fairness of termination, and reliefs. On the first issue, the court found the claimant's entire testimony revolved around Mr Mahmood, who employed, paid, stationed and terminated him, and that the claimant never rendered services at the respondent's premises in Regal Plaza. The claimant failed to discharge his onus of proving employment on a balance of probability; neither the certificate of incorporation nor the identity card was conclusive either way, but the oral evidence established Mr Mahmood as the actual employer. Applying Salomon v Salomon and Victor Mabachi & Anor v Nurturn Bates Ltd, the court held the respondent is a separate legal entity not liable for its director's acts or omissions, and noted the claimant ought to have enjoined Mr Mahmood. The unfair termination and relief issues were not reached. The claim was dismissed in its entirety with no orders as to costs. Judgment delivered virtually under COVID-19 directions, Article 159(2)(d) and Article 48 of the Constitution.

Key legal issues

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01

Whether an employment relationship existed between the claimant and the respondent

Holding

No. The claimant failed to prove on a balance of probability that the respondent was his employer; his evidence showed Mr Mahmood personally engaged, paid and terminated him.

Reasoning

The claimant admitted he was employed by, paid by, and stationed at the residence of Mr Mahmood, a director, and never rendered services at the respondent's premises in Regal Plaza. The respondent produced a certificate of incorporation dated 18 June 2007 showing it could not have employed him in 2000, and had never employed a security guard. The claimant's onus on a balance of probability was not discharged.

p. 3
02

Whether the respondent is liable for the acts of its director Mr Mahmood

Holding

No. Applying Salomon v Salomon, the respondent is a separate juristic person and not liable for the acts or omissions of its director absent factors warranting lifting of the veil.

Reasoning

The court applied the corporate personality principle as reiterated by the Court of Appeal in Victor Mabachi & Anor v Nurturn Bates Ltd, adopting it wholly. No lifting-the-veil factors were established, so the director's personal employment of the claimant could not be attributed to the company.

p. 3

Legal principles established

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  • A company is a separate legal entity distinct from its shareholders, directors and agents unless there are factors warranting lifting of the veil.
  • A claimant bears the onus of proving employment on a balance of probability, and an identity card alone is not conclusive proof of an employment relationship.

Court orders

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  1. 1.The claim is dismissed in its entirety with no orders as to costs.

Authorities

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Legislation

  • Employment ActSection 2 (definition of employer)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Christine Adot Lopeyio vs Wycliffe Mwathi Pere
    (2013) eKLR
  • Everret Aviation Limited vs Kenya Revenue Authority (through the Commissioner of Domestic Taxes)
    (2013) eKLR
  • Salomon vs Salomon
    (1897) AC
  • Salomon v Salomon & Co. Ltd.
    [1897] AC
  • Victor Mabachi & Anor v Nurturn Bates Ltd
    NRB CA Civil Appeal No. 247 of 2005 [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Civil Procedure Act (court of first instance over the unfair termination claim)

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, "Wago Roba Molu v Personal Systems Computer Limited [2021] KEELRC 302 (KLR)", Case Analysis (2021). Cause No 1964 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/302/eng@2021-11-30

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