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ELRCDismissedCause No. 1355 of 2016· [2022] KEELRC 716 (KLR)

Benard B’ Kones Ndiema v Twin Oaks Limited [2022] KEELRC 716 (KLR)

Employment and Labour Relations Court
17 February 2022
MOMaureen Onyango
1,930 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 ruled a worker whose company invoiced and was paid by cheques was an independent contractor, not an employee, so his termination claim failed.

What this practically means

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Executive summary

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The claimant sued Twin Oaks Limited alleging unlawful and unfair termination of employment, claiming compensation for unlawful termination, terminal dues and a certificate of service. He testified that he worked for the respondent from 2013 as Credit Manager (Debt Collection) on a salary of Kshs.42,000/-, and that on 26th January 2016 he was asked to hand over without notice, reason or payment of January salary. He relied on a staff identity card. The respondent denied ever employing him, contending it engaged his business, Wakobe Services, as an independent contractor to provide security and debt collection services, and alleged the staff ID was a forgery. It produced cheques drawn in favour of Wakobe Services and an invoice from Wakobe Services for guard services, all of which the claimant admitted related to his company. The respondent's witness acknowledged the engagement began in 2013 but conceded that no cheques from 2013 were produced and that Wakobe Services was only incorporated in 2015. The claimant did not dispute the authenticity of the cheques or invoice and offered no explanation for his company having drawn the invoice or received payment. Applying the principle that a claimant must still prove the employment relationship notwithstanding the employer's documentation duty, the court found the independent contractor relationship proved on a balance of probabilities. The claim was dismissed with costs on 17th February 2022.

Key legal issues

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01

Whether an employment relationship or an independent contractor relationship existed

Holding

The Respondent proved on a balance of probabilities that the relationship was one of independent contractor between the Respondent and the Claimant's enterprise, Wakobe Services

Reasoning

The claimant relied on a staff ID which the respondent alleged was forged. The respondent produced cheques payable to Wakobe Services and an invoice drawn by Wakobe Services, which the claimant admitted was his company and did not dispute or explain. The court held the employer's documentary duty does not relieve the claimant of his burden of proof, and the uncontroverted evidence established an independent contractor relationship.

p. 3
02

Whether the claimant was entitled to the reliefs sought

Holding

Not entitled; no employment relationship means no unfair termination and the claim was dismissed with costs

Reasoning

Having found no employment relationship, the court held that unfair termination could not arise and the claimant was not entitled to compensation for unlawful termination, terminal dues or a certificate of service.

p. 3

Legal principles established

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  • While the burden of documenting the employment relationship lies with the employer, the claimant still bears the onus of proving the employment relationship on a balance of probability
  • An uncontroverted fact admitted by silence, such as the claimant's company invoicing and receiving payment, may be fatal to a claim of employment

Court orders

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  1. 1.The claim is dismissed with costs

Authorities

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Legislation

  • Employment ActSection 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Kenya Hotels & Allied Workers Union v Alfajiri Villas (Magufa) Ltd
    [2014] eKLR
  • Casmir Nyakuru Nyaberi v Mwakikar Agencies Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Benard B’ Kones Ndiema v Twin Oaks Limited [2022] KEELRC 716 (KLR)", Case Analysis (2022). Cause No. 1355 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/716/eng@2022-02-17

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