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ELRCDismissedMemorandum of Claim dated 13th March, 2017 (amended 10th April, 2017)· [2021] KEELRC 897 (KLR)

John Abwor Radiala v Safari Luxury Shuttle Co. Limited [2021] KEELRC 897 (KLR)

Employment and Labour Relations Court
17 September 2021
2,336 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A worker suing for unfair termination in Kenya must first prove an employment relationship existed with actual evidence, not just claims.

What this practically means

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Executive summary

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The Claimant, by a memorandum of claim dated 13th March 2017 (amended 10th April 2017), sued the Respondent seeking Kshs.1,433,143.12, costs, interest, and a certificate of service, alleging that he was employed in 2007 as a labourer on a monthly salary of Kshs.11,200/= and that his services were wrongfully and unlawfully terminated on 17th August 2016 without payment of terminal dues. The Respondent, through an amended response, denied having ever employed the Claimant in any capacity and prayed for dismissal with costs. The court framed four issues, but treated the existence of an employment relationship as foundational, since a finding against the Claimant would collapse the cause. Applying the tests for an employment relationship (control, integration, economic reality, and mutuality of obligation) drawn from authority cited in the judgment, and upon scrutiny of the pleadings, testimony, exhibits and submissions, the court found that the Claimant had not discharged the burden of proving employment on a balance of probability. The Claimant testified alone, produced no written contract, no evidence of salary payment, and could not describe his duties, supervisors, or reporting times. His employment identity cards were disowned as forgeries; the Respondent's witnesses, whose evidence the court believed, explained that the Claimant was a freelance tout paid commission in cash, and NHIF and NSSF records did not include him. The remaining issues on fairness of termination, reliefs, and quantum were consequently not considered. The cause was dismissed with costs to the Respondent, to be agreed or taxed, in a judgment delivered virtually on 17th September 2021.

Key legal issues

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01

Whether the Claimant was an employee of the Respondent

Holding

The Claimant failed to prove, on a balance of probability, that he was an employee of the Respondent

Reasoning

The Claimant testified alone, produced no written contract, no proof of salary payment, could not describe his duties, supervisors or reporting times, and his employment identity cards were disowned as forgeries. The Respondent's two witnesses corroborated each other that the Claimant was a freelance tout, and NHIF/NSSF records did not contain his name. The probative value of his evidence fell below the required standard.

p. 3
02

Whether the Claimant was entitled to the reliefs sought and costs

Holding

Having failed to prove employment, the other issues fell away and the cause was dismissed with costs to the Respondent

Reasoning

Since employment was the foundational issue, a finding against the Claimant rendered it futile to consider reliefs and quantum. On costs, the court applied the general principle that costs follow the event and saw no reason to depart from it.

p. 3

Legal principles established

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  • He who alleges must prove; the burden lies on the claimant to establish the existence of an employment relationship before any relief can be considered
  • Proving a case on a balance of probability requires evidence in support, not mere pleadings and submissions
  • Tests for establishing an employment relationship include the control test, integration test, test of economic or business reality, and mutuality of obligation
  • Where a party believes the other has access to evidence such as salary records, that party should apply to compel its production

Court orders

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  1. 1.This cause is dismissed with costs to the Respondent, to be agreed or taxed in accordance with the applicable law

Authorities

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Legislation

  • Employment ActSection 2 (definition of employee)

Cases cited (2)

  • Christine Adot Lopeyio Vs Wycliffe Mwathi Pere
  • Samuel Wambugu Ndirangu Vs 2NK Sacco Society Limited
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim of employment under the Employment Act No. 11 of 2007

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, "John Abwor Radiala v Safari Luxury Shuttle Co. Limited [2021] KEELRC 897 (KLR)", Case Analysis (2021). Memorandum of Claim dated 13th March, 2017 (amended 10th April, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/897/eng@2021-09-17

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