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ELRCDismissedNot stated in the judgment· [2021] KEELRC 952 (KLR)

Joseph Amudavi Ilahalwa (Suing as the legal Representative of Christopher Muchera (Deceased) v Dickways Construction Company Limited [2021] KEELRC 952 (KLR)

Employment and Labour Relations Court
23 September 2021
1,735 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a family's claim for a deceased worker's benefits because they couldn't prove he was a permanent employee, not a daily-paid mason.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi, per Mathews N. Nduma, J, dismissed a claim brought through a legal representative of a deceased worker against a construction company. The claimant sought one month's salary in lieu of notice, service gratuity for five years, unpaid overtime, unpaid annual leave and a certificate of service, contending that the deceased was employed as a supervisor from 2010 until his employment was unlawfully and unfairly terminated on 2nd November 2015 without valid reason or an opportunity to be heard. The respondent denied the supervisory status, asserting the deceased was a casual daily-paid mason engaged intermittently at Kshs 600 per day, who simply stopped showing up at work in 2014/2015. The court framed three issues: the deceased's status, whether his employment was terminated, and the reliefs due. Applying sections 107 and 108 of the Evidence Act, it held the claimant bore the burden of proof and failed. The claimant's own payroll records listed the deceased as a mason paid daily rates, and the purported certificate of service attesting five years as a supervisor was found not genuine, being unsigned by the named Managing Director and not on proper letterhead. Consequently, no unlawful termination was established and no terminal benefits were due. The suit was dismissed with no order as to costs, the court taking into account the death of the initial claimant. Judgment was delivered virtually at Nairobi on 23rd September 2021.

Key legal issues

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01

Employment status of the deceased: daily paid mason or permanent supervisor

Holding

The deceased was a daily paid mason who did not work continuously for five years; he was never a supervisor.

Reasoning

There was conflicting evidence between C.W.1 and R.W.1. The claimant bore the onus under sections 107 and 108 of the Evidence Act. The claimant's own produced payrolls listed the deceased as a mason paid on daily rates, contradicting the claim of supervisory status. The purported certificate of service was found not genuine: it was not on company letterhead and unsigned by the named Managing Director. Bank statements showed weekly variable payments consistent with daily-paid casual work.

p. 3
02

Whether the termination was unlawful and unfair

Holding

The claimant failed to demonstrate unlawful or unfair termination; the deceased simply stopped reporting to work.

Reasoning

Following the finding that the deceased was not continuously employed, the court held that the claimant had not proved on a balance of probabilities that employment was terminated unlawfully and unfairly. The evidence indicated the deceased ceased attending the two construction sites in 2014/2015 rather than being dismissed.

p. 3
03

Entitlement to terminal benefits and compensation

Holding

No reliefs were due as the foundational claims were not proved.

Reasoning

Since neither supervisory status nor unfair termination was established, the court answered the third issue in the negative, holding that the terminal benefits claimed in the statement of claim and compensation for unlawful termination were not proved.

p. 3

Legal principles established

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  • The claimant bears the onus of proving employment status and entitlements on a balance of probabilities under sections 107 and 108 of the Evidence Act

Court orders

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  1. 1.The suit by the claimant is dismissed with no order as to costs

Authorities

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Legislation

  • Employment ActGeneral provisions (sections not specified)
  • Evidence Act, Cap. 80 Laws of KenyaSections 107 and 108
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (no specific provision invoked in the judgment)

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, "Joseph Amudavi Ilahalwa (Suing as the legal Representative of Christopher Muchera (Deceased) v Dickways Construction Company Limited [2021] KEELRC 952 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/952/eng@2021-09-23

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