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ELRCDismissedCause No 621 of 2017· [2022] KEELRC 543 (KLR)

Joyce Nyaboke Maina v Napenda Kuishi Trust [2022] KEELRC 543 (KLR)

Employment and Labour Relations Court
11 March 2022
2,689 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant sued the respondent trust alleging she was employed as a cook at its Boma Rescue Centre from January 1999 until December 2015 and was unfairly and unlawfully terminated without procedural fairness. She sought Kshs 400,800.00 comprising notice pay, compensatory damages, leave and severance pay. The respondent denied a fulltime relationship, contending she was a casual cook engaged only on Saturdays and during school holidays, and prayed for dismissal of the claim. The respondent's three witnesses (Ms Jane Karira, Ms Catherine Tina and Fr Maurizio Binaghi) gave consistent evidence of intermittent casual engagement. The claimant relied on a letter of recommendation authored by RW3, which the respondent said was written only to help her find other employment. The court framed three issues: the nature of the employment relationship, whether termination was unfair, and available reliefs. Applying sections 2, 35(1)(c) and 37 of the Employment Act, the court found no evidence of continuous working days aggregating to a month and rejected the claimant's submission that the respondent was bound to produce employment records under sections 10(6)-(7) and 74, since no written contract was alleged in a casual relationship. The claimant had also failed to issue a Notice to Produce for the audited accounts. The court held the claimant failed to prove fulltime employment on a balance of probabilities, the remaining issues fell away, and dismissed the claim in its entirety with each party bearing its own costs.

Key legal issues

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01

Nature of the employment relationship

Holding

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

Reasoning

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.

p. 3
02

Burden of proof and production of employment records

Holding

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

Reasoning

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.

p. 3
03

Unfair and unlawful termination

Holding

Not determined, as it fell away once the claimant failed to prove fulltime employment

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The claim is dismissed in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 35(1)(c)
  • Employment Actsection 37(1),(2),(4)
  • Employment Actsection 10(1),(6),(7)
  • Employment Actsection 74
  • Evidence Actsection 68(a)
  • Evidence Actsection 69
  • Evidence Actsection 107
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Mary Kitsao Ngowa & 37 others vs Krystalline Slat Limited
    (2014) eKLR
  • Gilbert Kasumali Kithi vs Nyali Beach Holiday Resort
    (2015) eKLR
  • Abigael Jepkosgei Yator & another vs China Hanan International Co. Limited
    ELRC Cause No. 136 of 2018 as consolidated with ELRC Cause No. 137 of 2018
  • William Kabogo Gitau vs George Thuo & 2 Others
    [2010] 1 KLR 526
Jurisdiction invoked
Employment and labour relations jurisdiction over disputes on terms and conditions of service

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.