Olemuteke v Jiwa (Cause 35(A) of 2018) [2023] KEELRC 590 (KLR)
The bottom line
#An employee suing for unfair termination in Kenya must prove the employment relationship existed, or the entire claim collapses.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee of the respondent
No employment relationship was proved; the master roll and other evidence pointed to Jetha Jiwa Bakeries, not the respondent
The master roll produced covered January 1998 to October 1999 and bore the claimant's name, but the claimant himself admitted that in 1998 he was working for the respondent's father at Jetha Jiwa Bakeries. The sale agreements he witnessed did not show he witnessed for the respondent. The Western Union payments came from Shanif Jiwa, the respondent's brother. His testimony was inconsistent on the date of termination, and CW2 was found not credible due to contradictions and pending suits against the respondent.
Whether the employment was unfairly terminated
The issue did not arise since no employment relationship with the respondent was established
Having found that the claimant's employment ended in 1999 with the closure of Jetha Jiwa Bakeries and that the respondent never employed him, the court held that the claims of unfair termination and the reliefs sought had no foundation. The burden under section 47(5) of the Employment Act lay on the claimant and was not discharged.
Legal principles established
#- The burden of proving the existence of an employment relationship and unfair termination rests on the employee under section 47(5) of the Employment Act
Court orders
#- 1.The claim dated 15th March 2018 is dismissed for lack of merit
- 2.Costs of the suit awarded to the respondent
- 3.Right of appeal within 30 days
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (employment relationship dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olemuteke v Jiwa (Cause 35(A) of 2018) [2023] KEELRC 590 (KLR)", Case Analysis (2023). Not stated in the judgment (Memorandum of Claim dated 15th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/590/eng@2023-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.