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ELRCDismissedCause No 124B of 2017· [2022] KEELRC 1558 (KLR)

Kihara v Saikabe Construction Company Limited (Cause 124B of 2017) [2022] KEELRC 1558 (KLR)

Employment and Labour Relations Court
28 July 2022
DNDavid Nderitu
2,320 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, a driver, sued the respondent alleging permanent employment at a monthly salary of Kshs 60,000 from December 2010, and claimed his September 4, 2016 termination was without notice or hearing. He sought a declaration of unfair termination and Kshs 1,521,000 comprising notice pay, three months' salary arrears, unpaid leave, twelve months' compensation, severance, overtime, and reimbursement of Kshs 25,750 for engine oil. The respondent denied the claim, asserting the claimant was a casual worker engaged on need basis at a daily wage, paid only for days worked, and free to work elsewhere. The court framed four issues: the nature of the employment relationship, fairness of termination, entitlement to reliefs, and costs. Applying section 107 of the Evidence Act, the court held the claimant bore the burden of proving monthly employment, which he failed to discharge - there was no written contract, no proof of the Kshs 60,000 salary, and the claimant admitted working only some days at daily wages. The respondent's failure to keep records under section 74 of the Employment Act did not shift that burden, and section 10(7) could not assist him. The court found the claimant was a casual day-to-day worker, so no notice or hearing was required to end the engagement. All monetary reliefs consequently failed, as did the oil reimbursement claim for want of evidence. The cause was dismissed with each party bearing their own costs.

Key legal issues

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01

Nature of the employment relationship

Holding

The claimant failed to prove he was a permanent month-to-month employee earning Kshs 60,000 per month; he was a casual engaged on a day-to-day basis on availability of work.

Reasoning

The claimant bore the burden under section 107 of the Evidence Act. There was no written contract, no evidence of payment of Kshs 60,000 monthly, and the claimant admitted not working Sundays or public holidays and being paid daily. Section 10(7) of the Employment Act could not salvage his case. The respondent's admitted failure to keep records did not shift the burden.

p. 4
02

Whether termination was unfair and unlawful

Holding

No notice was necessary because the claimant was a day-to-day casual worker; termination was effected simply by not engaging him further.

Reasoning

Having found the claimant was a casual engaged on need basis, the court held that once work was unavailable it sufficed not to engage him. No disciplinary issues arose requiring a hearing under sections 41, 42, 44 or 45 of the Employment Act, and the authorities cited by the claimant were inapplicable.

p. 4
03

Entitlement to reliefs

Holding

All monetary reliefs failed because they were premised on the claimant being a monthly employee.

Reasoning

Notice pay, salary arrears, leave pay, twelve months' compensation, severance and overtime all depended on a monthly employment relationship, which the claimant failed to prove. The oil reimbursement claim lacked any evidence.

p. 5

Legal principles established

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  • A party who alleges must prove on a balance of probabilities
  • The burden of proving the nature of employment does not shift to the employer merely because the employer did not keep records

Court orders

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  1. 1.The cause is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsections 10, 10(7), 41, 42, 44, 45, 49, 74
  • Evidence Act (Cap 80)section 107

Cases cited (2)

  • Milkah Khavavi Kulati v Sandstorm Africa Limited
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment causes under the Employment Act

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, "Kihara v Saikabe Construction Company Limited (Cause 124B of 2017) [2022] KEELRC 1558 (KLR)", Case Analysis (2022). Cause No 124B of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1558/eng@2022-07-28

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