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ELRCAllowedCause 811 of 2018 (consolidated with Cause 785 of 2018)· [2022] KEELRC 870 (KLR)

Peter Gordon Horsey & another v Civicon Limited [2022] KEELRC 870 (KLR)

Employment and Labour Relations Court
7 February 2022
MOMaureen Onyango
2,800 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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Kenya's Employment Court ruled that the company paying your salary is your employer, even if a different group company signed your contract.

What this practically means

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Executive summary

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Two consolidated claims, Cause 811 of 2018 (Peter Gordon Horsey) and Cause 785 of 2018 (Jason Horsey), sought payment of salary arrears from Civicon Limited following their resignations in 2017. Peter Horsey, a Manager, claimed USD 51,372 for unpaid salary from June to September 2017 plus 17 days in October 2017; Jason Horsey, the CEO, claimed USD 72,919 for June to September 2017 plus 13 days in October 2017, both also seeking certificates of service, costs and interest. The Respondent denied employing the Claimants, asserting that the contracts of employment were with Civicon Africa Group Limited and Civicon Kenya Limited, different entities from the Respondent, and that the burden of proving employment lay with the Claimants. The issues framed were whether the Claimants were employees of the Respondent and whether they were entitled to the reliefs sought. Examining the contracts, resignation and acceptance letters, last-working-day letters on Civicon Limited letterheads, and the KRA Tax Deduction Cards showing Civicon Limited paid both salaries and taxes, the court found the group operated interchangeably under various names and that Civicon Limited was the employer under Section 2 of the Employment Act. The Respondent led no evidence on the arrears, which the court found undisputed. Judgment was entered for the Claimants: USD 51,372 for Peter Horsey and USD 72,919 for Jason Horsey, certificates of service, costs, and interest at court rates from the date of filing suit.

Key legal issues

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01

Identity of the employer among related group entities

Holding

Civicon Limited, the Respondent, was the Claimants' employer because it paid their salaries and remitted their taxes

Reasoning

The employment contracts named Civicon Africa Group Limited and Civicon Kenya Limited, but resignation and acceptance letters, last-working-day letters and KRA Tax Deduction Cards linked both Claimants to Civicon Limited. RW1 confirmed the group operated under interchangeable entities. The court held that the salary-paying entity is the employer absent explanation, so the Claimants sued the correct party.

p. 4
02

Entitlement to unpaid salary arrears

Holding

The Respondent led no evidence to rebut the salary arrears claims, which were undisputed, so the full amounts claimed were awarded

Reasoning

The Respondent adduced no evidence on the salary arrears. Email communications and the letter of 17 October 2017 by Ben Kiilu acknowledged outstanding dues. The court found the salary arrears existed and, since the amounts in the statements of claim were undisputed, awarded USD 51,372 to Peter Horsey and USD 72,919 to Jason Horsey, plus certificates of service, costs and interest.

p. 4

Legal principles established

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  • The entity that pays salaries and remits tax for an employee is properly held to be the employer, absent explanation

Court orders

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  1. 1.Award of USD 51,372 to Peter Horsey
  2. 2.Award of USD 72,919 to Jason Horsey
  3. 3.The Respondent to issue the Claimants with certificates of service
  4. 4.Costs awarded to the Claimants
  5. 5.Interest to accrue at Court rates from date of filing suit

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 49
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Motex Knitwear Limited v Gopitex Knitwear Mills Limited
    [2009] eKLR
  • Mary Njeri Murigi v Peter Macharia and Another
    [2016] eKLR
  • Martin Juma Kundu v Kemu Salt Packers Production Limited
    [2016] eKLR
  • Kwekwe Mwakela v Krystalline Salt Ltd
    [2014] eKLR
  • Kenya Broadcasting Corporation v Geofrey Wakio
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Labour Relations 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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Cite this brief

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Cite this brief

Caselaw, "Peter Gordon Horsey & another v Civicon Limited [2022] KEELRC 870 (KLR)", Case Analysis (2022). Cause 811 of 2018 (consolidated with Cause 785 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/870/eng@2022-02-07

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