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ELRCDismissedCause No 708 of 2016· [2021] KEELRC 2429 (KLR)

Kudheiha Workers v Nioroge (Cause 708 of 2016) [2021] KEELRC 2429 (KLR)

Employment and Labour Relations Court
10 September 2021
BMB O M Manani
1,507 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a domestic worker's unfair termination claim because she could not prove an employer-employee relationship actually existed.

What this practically means

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Executive summary

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The Claimant, suing on behalf of the grievant CW1, alleged that CW1 was engaged orally in February 2012 as the Respondent's domestic worker at a monthly wage of Kshs. 6,500 and that her services were terminated on 23rd December 2014 after she asked for a salary increment. The Claimant sought reinstatement or, alternatively, compensation for wrongful termination. The Respondent denied ever employing CW1, asserting she had never met her until a labour office meeting, and sought dismissal of the claim with costs. The court framed three issues: whether CW1 was employed by the Respondent, whether any contract of service was unfairly terminated, and whether CW1 was entitled to the remedies sought. On the first issue, the court reaffirmed that the burden of proving employment lies on the person alleging it, to be discharged on a balance of probabilities. Applying the control and integration tests, the court found that photographs of the Respondent's family and untested letters from neighbours did not establish an employer-employee relationship, noting that not every labour contract amounts to a contract of employment. The court also clarified that the employer's statutory duty to keep and furnish employment records arises only once the existence of the relationship is sufficiently demonstrated, and that even oral contracts require some corroborative evidence. Holding that CW1 failed to prove employment, the court dismissed the claim with costs to the Respondent and found it unnecessary to address the remaining issues. Judgment was delivered online pursuant to Covid-19 directions, the parties having waived compliance with Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether an employer-employee relationship existed between CW1 and the Respondent

Holding

CW1 failed to discharge the burden of proving employment on a balance of probabilities

Reasoning

The court applied the traditional tests for a contract of service, principally control and the integration test. CW1 relied on photographs of the Respondent's family and untested written statements from neighbours, neither of which established control over her work, provision of tools, or that her services were integral to the Respondent's undertakings. Neighbour letters could not be relied upon without their makers testifying and being cross-examined. The employer's statutory record-keeping obligations were held to arise only once employment is sufficiently demonstrated.

p. 3
02

Allocation of the burden of proving or disproving employment, including in cases of oral contracts

Holding

The burden lies on the claimant alleging employment; the employer's duty to produce records is triggered only once the relationship's existence is established

Reasoning

Relying on Casmir Nyankuru Nyaberi v Mwakikar Agencies Limited, the court held that although employers must document employment and may bear the burden on contested terms, this does not release a claimant from proving their case. Even an oral contract requires some corroborative evidence, documentary or viva voce. The decision in Lawi Wekesa Wasike v Mattan Contractors Limited was contextualised as restating the position on undisputed contracts, not shifting the primary burden to the alleged employer.

p. 3

Legal principles established

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  • The onus of proving employment under a contract of service lies with the person who alleges that he was so employed
  • Not all labour contracts are employment contracts; some may be independent contracts, so evidence of work done does not itself prove employment
  • The employer's statutory duty to keep employment records arises only where an employment relationship is first sufficiently demonstrated
  • Where the existence of an employment contract is undisputed, the employer must produce records to assist the court on contested terms; the burden of disproving employment does not lie on the alleged employer

Court orders

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  1. 1.The claim is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment Act (implied by reference to employer obligations)sections 9(2) and 10(6) and (7)
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (6)

  • Allied Wharfage Limited v Ganja Mavumba Nyawa
    [2020] eKLR
  • Casmir Nyankuru Nyaberi v Mwakikar Agencies Limited
    [2016] eKLR
  • Lawi Wekesa Wasike v Mattan Contractors Limited
    [2016] eKLR
  • Jonathan Zacharia and 24 others v Bulk Warehouse Management and 2 others
  • Josephine M Akinyi v Farhiyo Mohamed
  • Joseph Towett v Kalee Limited
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (implied by the claim for wrongful termination); exact constitutional/statutory basis not stated 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, "Kudheiha Workers v Nioroge (Cause 708 of 2016) [2021] KEELRC 2429 (KLR)", Case Analysis (2021). Cause No 708 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2429/eng@2021-09-10

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