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ELRCDismissedNot stated in the judgment· [2022] KEELRC 13 (KLR)

Kaitano v Western Mills Ltd (Cause 217 of 2017) [2022] KEELRC 13 (KLR)

Employment and Labour Relations Court of Kenya
9 May 2022
AJAbuodha Nelson Jorum
1,204 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an unfair termination claim because NSSF records proved the worker's real employer was a labour contractor, not the company he sued.

What this practically means

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Executive summary

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The claimant pleaded that he was orally employed by the respondent as a rig processor, earning Ksh.14,400 per month, and that his services were terminated without valid reason or notice on 30th May 2017. He further claimed he never went on leave, worked seven days a week without rest days and overtime pay, and was denied terminal dues. The respondent denied that the claimant was ever its employee, contending that it had subcontracted labour services to Jokali Handling Ltd, which employed the claimant, and that Jokali terminated the claimant's services. At trial, the claimant adopted his witness statement, denied signing a contract with Jokali (alleging the signature was not his but filing no forgery complaint), but conceded that the NSSF statement showing Jokali Handling Service as his employer bore his name and identity card number. The respondent's witness testified that Jokali supplied labour, paid salaries, remitted NSSF, and issued the termination letter, though the written contract between the respondent and Jokali was not produced in court. Applying the four-fold test for an employment relationship, the court found the NSSF records and unrebutted documentary evidence established Jokali, not the respondent, as the claimant's employer. The respondent was held non-suited, and the entire suit against it was dismissed with costs.

Key legal issues

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01

Whether an employer-employee relationship existed between the claimant and the respondent

Holding

No such relationship existed; the claimant was an employee of Jokali Handling Ltd, as shown by the contract of employment, termination letter and NSSF records, which the claimant did not rebut

Reasoning

Applying the four-fold test, the court weighed the respondent's documentary evidence: a contract between the claimant and Jokali, a termination notice issued by Jokali, and an NSSF statement showing Jokali as employer remitting deductions. The claimant conceded the NSSF statement was genuine, denied signing the contract without ever pursuing a forgery complaint, and filed no reply to the defence. The court inferred the claimant was not being truthful about his employer.

p. 3

Legal principles established

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  • The four-fold test determines the existence of an employer-employee relationship: selection and engagement, payment of wages, power of dismissal, and control of the employee's conduct

Court orders

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  1. 1.The suit against the respondent is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly cited 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, "Kaitano v Western Mills Ltd (Cause 217 of 2017) [2022] KEELRC 13 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/13/eng@2022-05-09

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