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ELRCDismissed· [2022] KEELRC 656 (KLR)

Evans B. Mabiya & 2 others v African Marine General Co. Ltd [2022] KEELRC 656 (KLR)

Employment and Labour Relations Court
25 February 2022
788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Winning the argument on employment wasn't enough—the workers' Kshs. 993,913 claim collapsed because they never pleaded or proved exactly what each was owed.

What this practically means

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Executive summary

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This ELRC judgment at Mombasa, delivered by Byram Ongaya, Judge, on 25 February 2022, resolved a claim by former workers seeking terminal dues of approximately Kshs. 993,913, alleging they were declared redundant in breach of section 40 of the Employment Act, 2007. The original plaint was filed in January 2004, with an amended memorandum of claim in June 2021. The respondent denied employing the claimants, or alternatively that their termination was lawful, and sought dismissal with costs. The court framed two issues. First, on the employment relationship, it found that a contract of employment existed: the respondent's advocates' reply to the demand letter confirmed the claimants were employed as casuals, and under section 2 of the Employment Act the respondent was the principal employer who paid the claimants through agents. Second, on quantum and entitlement, the court declined the claim. The claimants pleaded a global sum without particulars per claimant; their witnesses were incoherent on overtime and shifts; a wage order relied on postdated CW2's service; and their testimony that they were casual workers was inconsistent with alleged redundancy. A labour officer's computation was disowned by CW2 and was never agreed to by the respondent. The suit was dismissed, but given the long delay since filing and the respondent's failure to cooperate with the District Labour Officer, each party was ordered to bear its own costs.

Key legal issues

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01

Existence of a contract of employment

Holding

The Court found that the parties were in a contract of employment; the respondent's counsel's reply letter confirmed the claimants were employed as casuals, and the respondent was the principal employer who paid the claimants through agents

Reasoning

The respondent's advocate's reply to the demand letter confirmed employment as casuals, contradicting the defence denial. Under section 2 of the Employment Act, 'employer' includes a person who has entered a contract of service and also an agent, foreman, manager or factor. The respondent was the principal employer for whom the claimants worked, paying them through agents, so a contract of service existed.

p. 2
02

Entitlement to terminal dues claimed

Holding

The claim for terminal dues failed because the global sum was not specifically pleaded or strictly proved, and the evidence of casual service was inconsistent with redundancy

Reasoning

The claimants pleaded a global sum without particulars for each claimant. CW1 and CW2 were incoherent on overtime computation, and CW2's reliance on a wage order postdating his service undermined underpayment claims. Their consistent testimony that they were casual workers was inconsistent with alleged redundancy under section 40. The labour officer's computation was disowned and not agreed to by the respondent.

p. 2

Legal principles established

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  • Special or liquidated damages must be specifically pleaded and strictly proved
  • The definition of employer under section 2 of the Employment Act includes a person who has entered a contract of service and includes an agent, foreman, manager or factor of such person

Court orders

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  1. 1.Judgment entered for the respondent against the claimants for dismissal of the suit
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Actsection 40
  • Employment Actsection 2
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007); original ELRC claim filed by plaint and later amended memorandum of claim

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, "Evans B. Mabiya & 2 others v African Marine General Co. Ltd [2022] KEELRC 656 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/656/eng@2022-02-25

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