Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedELRC Cause (Nairobi) — Memorandum of Claim dated 28th July 2015· [2021] KEELRC 1319 (KLR)

Jacinta Mwenga Nyamai v Tracewood Limited [2021] KEELRC 1319 (KLR)

Employment and Labour Relations Court
9 June 2021
NMNzioki Wa Makau
2,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court dismissed an unfair termination claim because the worker could not prove she was actually employed by the company she sued.

What this practically means

#

Executive summary

#
The Claimant sued Trancewood Limited for unfair termination, alleging she was employed as a casual labourer from April 2004 to June 2015 on a monthly salary of Kshs. 15,000/-, sometimes working as a house help for a Director, Mangula Vikana. She claimed she was injured at work in 2013, was given sick-off days in mid-2015, and was then instructed to write a resignation letter and sign a form recording her benefits; on refusing, she was dismissed without notice, reasons or terminal dues. She sought 12 months' wages as compensation, May 2015 salary, service pay, notice pay and leave. The Respondent denied any employment relationship, produced payroll and NSSF/NHIF records excluding the Claimant, and asserted it never employed women as casuals. The Respondent also produced certified NSSF documents showing the Claimant was registered as a voluntary contributor, unlike her own unstamped NSSF statement. Both Respondent witnesses denied knowing her. The court found the Claimant's own NSSF statement, being unstamped and showing voluntary contribution, contradicted her claim of employment, and that no nexus between her and the company was demonstrated. The court observed she might have had a claim against the Director personally. The suit was dismissed with no order as to costs, delivered at Nairobi on 9th June 2021 by Nzioki Wa Makau J.

Key legal issues

#
01

Existence of an employer-employee relationship

Holding

The Claimant failed to prove she was employed by the Respondent; her own NSSF statement showed she was a voluntary contributor, and the Respondent's payroll records did not include her

Reasoning

The Respondent denied the employment relationship and produced payroll, NSSF and NHIF records excluding the Claimant. The Claimant had no written contract, no payslip, and her unstamped NSSF statement indicated voluntary contribution. The court found she may have worked for a Director, Mangula Vikana, in her household, but no nexus with the company was shown.

p. 3
02

Unfair termination and burden of proof

Holding

Unfair termination could not arise in the absence of a proved employment relationship

Reasoning

Counsel's submissions on Sections 35, 41, 43, 45 and 47(5) of the Employment Act presupposed an employment relationship. Since the foundational fact of employment was not proved, the statutory protections and the employer's burden of justifying termination were not engaged, and the compensation claim necessarily failed.

p. 3

Legal principles established

#
  • Where the respondent denies an employment relationship, the claimant bears the evidentiary burden of proving it; an unstamped NSSF statement showing voluntary contribution does not establish employment

Court orders

#
  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Employment ActSection 37
  • Employment ActSection 47(5)
  • Employment ActSection 35(1)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 2 (definition of 'employee')
  • NSSF ActSections 19 and 20

Cases cited (6)

  • Humphrey Omondi v Vishnu Builders Ltd
    [2016] eKLR
  • George Onyango Akuti v G4S Security Services Kenya Ltd
    [2013] eKLR
  • Samuel Wambugu Ndirangu v 2NK Sacco Society Limited
    [2019] eKLR
  • Joseph Munene Murage v Salome Ndung'u
    [2019] eKLR
  • Zarika Adoyo Obondo v Tai Shunjun & Another
    [2020] eKLR
  • John Matete Abayo v Digital Imaging Systems Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims of unfair termination of employment under the Employment Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jacinta Mwenga Nyamai v Tracewood Limited [2021] KEELRC 1319 (KLR)", Case Analysis (2021). ELRC Cause (Nairobi) — Memorandum of Claim dated 28th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1319/eng@2021-06-09

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