Joyce Nyaboke Maina v Napenda Kuishi Trust [2022] KEELRC 543 (KLR)
The bottom line
#A Kenyan court dismissed a cook's unfair termination claim because she couldn't prove she was a fulltime employee rather than a casual worker.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The claimant failed to prove she was engaged on a fulltime basis; the respondent's consistent evidence of casual, intermittent engagement (Saturdays and school holidays) was accepted
All three of the respondent's witnesses consistently testified that the claimant worked only on Saturdays and during school holidays, and there was no evidence of continuous working days aggregating to one month. The claimant relied only on a letter of recommendation authored to assist her seek other employment, which was insufficient proof of fulltime status.
Burden of proof and production of employment records
Sections 10(6)-(7) and 74 of the Employment Act were inapplicable since no written contract was alleged for a casual engagement; failure to issue a Notice to Produce for audited accounts left the claimant's allegations of concealment unaddressed
The court found it presumptuous to deem section 74 records non-existent but noted no written contract was claimed in a casual relationship, rendering sections 10(6)-(7) and 74 irrelevant. Under section 69 read with section 68(a) of the Evidence Act, production of documents requires a Notice to Produce, which the claimant never issued despite knowing of the audited financial records.
Unfair and unlawful termination
Not determined, as it fell away once the claimant failed to prove fulltime employment
The court held that the second and third issues were dependent on the finding on the nature of the employment relationship. Since the claimant failed to establish fulltime employment, the issues of unfair termination and available reliefs logically could not be determined.
Legal principles established
#- Where an employer fails to produce a written contract, the burden of proving an alleged term of employment lies on the employer; but where the relationship is alleged to be casual with no written contract, those provisions are not engaged and the claimant must prove fulltime employment on a balance of probabilities
- A party aware of documents in the opponent's possession who wishes them produced must issue a Notice to Produce or make the appropriate application
Court orders
#- 1.The claim is dismissed in its entirety
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction over disputes on terms and conditions of service
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Petrocity Enterprises Limited v Shimoka (Appeal E014 of 2024) [2024] KEELRC 2083 (KLR)[2024] KEELRC 2083 (KLR)18 Jul 2024
Cite this brief
#Cite this brief
Caselaw, "Joyce Nyaboke Maina v Napenda Kuishi Trust [2022] KEELRC 543 (KLR)", Case Analysis (2022). Cause No 621 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/543/eng@2022-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.