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ELRCDismissedNot stated in the judgment· [2022] KEELRC 26 (KLR)

Angaluki v Waruhiu Kamau Gitoka t/a Sakam Engineering Contractor (Cause 1670 of 2016) [2022] KEELRC 26 (KLR)

Employment and Labour Relations Court
28 April 2022
SRStella Rutto
2,878 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 threw out an unfair termination claim because the worker couldn't prove he was actually fired, and confirmed he worked for the labour contractor, not the big company.

What this practically means

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Executive summary

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The claimant sued the respondent, a labour contractor, alleging he was employed as a store keeper from 10th April 2013 until his employment was terminated without explanation on 1st July 2015, and sought Kshs 246,986.12 as notice pay, compensatory damages, house allowance, overtime, accrued leave days and severance pay. The respondent denied the employment relationship, contending the claimant was an employee of Kenafric Industries Limited, for which the respondent had merely contracted to supervise employees, and that as an agent of a disclosed principal he could not be sued. The court framed three issues: existence of an employment relationship, fairness of termination, and entitlement to reliefs. On the first, analysing the job contract between the respondent and Kenafric Industries, the court found the contract was one for the supply of labour: the respondent hired, deployed, disciplined, equipped and paid the staff he sent to Kenafric, including the claimant, and was liable for their injuries. The claimant was therefore the respondent's employee, not Kenafric's. On termination, invoking section 47(5) of the Employment Act and the Court of Appeal's decision in Pius Machafu Isindu vs Lavington Security Guards Limited, the court held the claimant had failed to prove the fact of termination: there was no termination letter, no prompt protest or complaint to the labour office, and the demand letter came nearly eight months later. The employer was therefore not called upon to justify the termination. All reliefs were declined for want of proof. The claim was dismissed in its entirety with no orders as to costs. Judgment was delivered virtually at Nairobi on 28th April 2022 by Stella Rutto, J.

Key legal issues

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01

Whether an employment relationship existed between the claimant and the respondent

Holding

The claimant was an employee of the respondent, not Kenafric Industries; the job contract was one for the supply of labour by the respondent as contractor.

Reasoning

The court analysed the job contract clauses: the contractor supplied staff, issued job cards, uniforms and ID, disciplined them, paid them and was liable for their injuries. The bank statement showed the respondent paid the claimant's salary. The alleged principal-agent relationship did not emerge; what was apparent was a contract for the supply of labour, clothing the respondent with the rights and responsibilities of an employer.

p. 5
02

Whether the claimant was unfairly and unlawfully terminated

Holding

The claimant failed to prove the fact of termination under section 47(5) of the Employment Act, so the enquiry into fairness did not arise.

Reasoning

There was no letter of termination or other evidence, such as a former coworker's testimony or a prompt complaint to the labour office, proving termination. The demand letter came nearly eight months after the alleged termination. Following Pius Machafu Isindu, the employee must first lay the foundation before the employer is required to justify the termination under section 43(1).

p. 6

Legal principles established

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  • Under section 47(5) of the Employment Act, the employee bears the burden of proving the fact of termination before the employer is called upon to justify the grounds for termination
  • Where a labour contractor supplies his own workforce to a principal under a job contract, the supplied staff are employees of the contractor, not the principal

Court orders

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  1. 1.The claim is dismissed in its entirety with no orders as to costs

Authorities

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Legislation

  • Employment ActSection 2 (definitions of employee and employer)
  • Employment ActSection 47(5)
  • Employment ActSection 43(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (8)

  • Samuel Wambugu Ndirangu vs 2NK SACCO Limited
    (2019) eKLR
  • Martin Juma Kundu v Kemu Salt Packers Production Limited
    [2016] eKLR
  • Walter Ogal Anuro vs Teachers Service Commissions
    (2013) eKLR
  • Kenya Hotels & Allied Workers Union vs Alfajiri Villas (Magufa) Ltd
    (2014) eKLR
  • Gilbert Sule Otieno vs Seventh Adventist Church (East Africa) Ltd (sued on behalf of SDA Church, Kiamunyi East)
    (2014) eKLR
  • Victor Mabachi & another vs Nurtun Bates Ltd
    (2013) eKLR
  • Fredrick Byakika vs Mutiso Menezes International Unlimited
    (2016) eKLR
  • Pius Machafu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; Employment and Labour Relations Court)

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, "Angaluki v Waruhiu Kamau Gitoka t/a Sakam Engineering Contractor (Cause 1670 of 2016) [2022] KEELRC 26 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/26/eng@2022-04-28

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