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ELRCDismissedNot stated in the judgment· [2022] KEELRC 509 (KLR)

Anthony Njuguna v Afri-Cina International Co.Ltd & another [2022] KEELRC 509 (KLR)

Employment and Labour Relations Court
9 March 2022
DMD.K. Njagi Marete
1,354 words in judgment
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The bottom line

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A Kenyan court dismissed a Kshs 33.4 million claim because the worker couldn't prove he was actually an employee, not an independent contractor.

What this practically means

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Executive summary

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The claimant, represented as employed by the respondent as a Manager covering Embu, Meru, Murang'a and Nyeri from 2004 on a ten-year contract from January 2016 to January 2026, claimed Kshs. 33,400,000/= in damages for breach of contract following termination of his contract on 12th March 2018. He relied on a monthly salary of Kshs. 30,000, vehicle fuel while on duty, insurance cover, and seventy cents per kilogram of macadamia nuts purchased by the company. The respondent denied the claim, asserting it was a fraud and an abuse of court process, that the claimant neglected his duties by venturing into politics, and that no employment relationship existed - only an independent contractor arrangement. Determination was by written submissions. The court framed four issues: whether there was a termination of employment; whether any termination was wrongful or unlawful; whether the claimant was entitled to relief; and costs. The respondent relied on authorities distinguishing a contract of service from a contract for service. The court found the claimant had failed to evidentially sustain a case of employment or unlawful termination, flopping on the balance of probabilities, and falling short of the burden in section 47(5) of the Employment Act, 2007, which places the burden of proving unfair termination on the employee. Finding no termination of employment, the court held the claimant disentitled to relief. The claim was dismissed with each party bearing their own costs. Judgment was delivered at Nyeri on 9th March 2022 by D.K. Njagi Marete, Judge.

Key legal issues

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01

Whether an employment relationship existed between the parties or whether the claimant was an independent contractor

Holding

The court found there was no employment relationship and no termination of employment; the claimant failed to prove employment on a balance of probabilities

Reasoning

The claimant asserted a ten-year management contract with monthly salary and commission, but the court found his own documents conceded he was a Marketing Agent rather than an employee. The respondent relied on authorities distinguishing a contract of service from a contract for service. Applying section 47(5) of the Employment Act, the claimant bore the burden of proving employment and unfair termination and failed to discharge it.

p. 3
02

Whether the claimant was entitled to the relief sought

Holding

The claimant was not entitled to any relief having failed to prove unlawful termination

Reasoning

Having found no employment relationship and no termination of employment, the court held that the claimant, having lost on the case of unlawful termination, became disentitled to the damages claimed, which included salary for the unexpired term, fuel allowances and macadamia commissions over ten years.

p. 3

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee under section 47(5) of the Employment Act, 2007
  • A claimant who fails to evidentially establish an employment relationship on a balance of probabilities fails in his claim in its entirety

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 2
  • Employment Act, 2007section 47(5)

Cases cited (3)

  • Ready-Mix Concrete (South East) Ltd v Minister of Pensions and National Insurance
    1968 2 QB
  • Kenya Hotels and Allied Workers Union v Alfajiri Villas (Magufa) Ltd
    (2014) eKLR
  • Fredrick Byakika v Mutiso Menezes International Limited
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anthony Njuguna v Afri-Cina International Co.Ltd & another [2022] KEELRC 509 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/509/eng@2022-03-09

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