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ELRCDismissedNot stated in the judgment· [2023] KEELRC 340 (KLR)

Kitonga & 12 others v Shreeji Chemicals Limited & 2 others (Employment and Labour Relations Cause 370 of 2017) [2023] KEELRC 340 (KLR)

Employment and Labour Relations Court
10 February 2023
BOByram Ongaya
1,396 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed 14 workers' claims because they couldn't prove who actually employed them—the company showed labour was outsourced through written contracts.

What this practically means

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Executive summary

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Fourteen claimants sued alleging that they were employed orally by the 1st respondent's personnel manager in its gasifier department in various capacities from diverse dates, working six days a week for at least 11 hours daily at an average daily wage of Kshs 720 paid in cash. They alleged breaches of sections 9, 20, 28 and 51 of the Employment Act, 2007 and wrongful termination on February 6, 2016 when the plant closed. They sought notice pay of Kshs 243,360, accumulated leave of Kshs 644,656, maximum compensation of Kshs 2,920,320 under sections 49 and 50, certificates of service, costs and interest. The 1st respondent denied employing the claimants directly, pleading that manpower was subcontracted to the 2nd and 3rd respondents under written agreements, and prayed for dismissal with costs. The 2nd and 3rd respondents did not enter appearance. The claimants' sole witness testified he was a casual labourer who did not apply in writing, was not told the job was permanent, and could not establish that the 1st respondent paid the claimants or when the other claimants began work. The court found the 1st respondent's evidence of manpower supply contracts, invoices and payments consistent with its pleadings, and held that medical assessments and certificates of good performance did not defeat the outsourcing case. The court found the claimants' reliance on an average daily wage speculative. Holding that no contract of service with the 1st respondent was established, and that no case was made against the 2nd and 3rd respondents, the court dismissed the amended memorandum of claim with costs and directed the deputy registrar to return the file to the Mombasa registry.

Key legal issues

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01

Whether the claimants were employees of the 1st respondent

Holding

Not established; the claimants may have been casual employees of the 2nd and 3rd respondents, who supplied manpower to the 1st respondent under contracts

Reasoning

The claimants' witness confirmed he was a casual labourer working as assigned and did not establish that the 1st respondent paid the claimants or that their employment converted to permanent service. The 1st respondent's evidence of contracts with the 2nd and 3rd respondents for provision of manpower, supported by invoices and tabulated numbers of workers supplied against fees paid, was consistent with its pleading and credible.

p. 3
02

Whether a case was established against the 2nd and 3rd respondents

Holding

No case was established because the claimants' testimony fixed the employer as the 1st respondent

Reasoning

Since the claimants' witness insisted throughout that the employer was the 1st respondent, no case could be made against the 2nd and 3rd respondents, who never filed a response or attended the hearing. The claimants did not plead or prove the terms of their engagement with the 2nd and 3rd respondents.

p. 3

Legal principles established

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  • A claimant alleging oral employment must establish the contract of service, including who paid the wages; mere presence at an enterprise does not establish employment by the enterprise owner where manpower was outsourced
  • Evidence of medical assessments and certificates of good performance showing a claimant worked at a factory does not defeat a plea that casual workers were supplied under manpower outsourcing agreements
  • Pleading an average daily wage rather than the actual wage each claimant was paid renders the claim speculative

Court orders

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  1. 1.The memorandum of claim as amended is dismissed with costs
  2. 2.The deputy registrar to forthwith return the file to the Mombasa registry

Authorities

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Legislation

  • Employment Act, 2007section 9
  • Employment Act, 2007section 20
  • Employment Act, 2007section 28
  • Employment Act, 2007section 49
  • Employment Act, 2007section 50
  • Employment Act, 2007section 51
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims under the Employment Act, 2007 (specific constitutional/statutory provision not 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, "Kitonga & 12 others v Shreeji Chemicals Limited & 2 others (Employment and Labour Relations Cause 370 of 2017) [2023] KEELRC 340 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/340/eng@2023-02-10

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