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ELRCDismissedNot specified in judgment (claim filed 21st April 2017)· [2023] KEELRC 777 (KLR)

Kabui v Lalani (Cause 1697 of 2017) [2023] KEELRC 777 (KLR)

Employment and Labour Relations Court
28 March 2023
AMANNA NGIBUINI MWAURE
1,476 words in judgment
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The bottom line

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Kenya's Employment Court dismissed an unfair termination claim because the worker could not prove an employment relationship existed.

What this practically means

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Executive summary

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The claimant filed a claim on 21st April 2017 alleging unfair and wrongful termination of his employment by the respondent on 12th December 2016. He pleaded that he was employed in 2013 as an electrician at Kshs 26,000/- per month, later reviewed to Kshs 31,200/-, and sought compensation together with punitive and aggravated damages and costs. The respondent denied an employment relationship, averring that the claimant was a casual worker paid daily at a construction site, and prayed for dismissal with costs. In evidence, the claimant admitted having no documents evidencing employment and did not call any witness. The respondent's witness, Mr Lelani, testified that the claimant was a temporary worker paid Kshs 1,200/- per day and produced petty cash vouchers evidencing intermittent payments, some marked 'casual' and others 'electrician'. The court framed two issues: whether the claimant was a service employee or a casual, and whether he was entitled to the reliefs prayed. Finding no documentary or other evidence of an employment relationship, and noting that the employee must lay a basis for his claim notwithstanding the employer's record-keeping duty under section 74 of the Employment Act, the court held it could not entertain an unfair termination claim absent an employment relationship. The claim was dismissed and, the claimant having been found a casual worker, each party was ordered to bear their own costs. Judgment was delivered virtually in Nairobi on 28th March 2023 by Anna Ngibuini Mwaure, Judge.

Key legal issues

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01

Whether an employment relationship existed between the claimant and the respondent

Holding

The claimant failed to prove an employment relationship; the court concluded he was a casual employee paid daily via petty cash vouchers

Reasoning

The claimant tendered no documentary evidence of employment such as payslips, NSSF or NHIF records. The petty cash vouchers showing varying intermittent payments, some marked 'casual' and others 'electrician', supported the respondent's account. He also failed to call any fellow worker as a witness despite claiming three years of service.

p. 3
02

Whether the claimant was entitled to the reliefs prayed for unfair termination

Holding

The reliefs fell away since no employment relationship was proved; the claim was dismissed

Reasoning

Having found no employment relationship, the court could not consider unfair termination under the Employment Act. The claim could not hold and was dismissed, with each party bearing their own costs given the finding that the claimant was a casual worker.

p. 3

Legal principles established

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  • The jurisdiction of the Employment and Labour Relations Court in labour matters is limited to an employment relationship as defined in law, which must be established before the court proceeds further
  • While the employer is expected to keep employee records under section 74 of the Employment Act, the employee must first lay a basis for the claim of employment

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to meet their own costs

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 2 (definition of casual employee)
  • Employment Actsection 74
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (4)

  • Francis Mwema Kamau vs China Railways No. 10 Group Co Ltd
    2018 eKLR
  • Kosgei Metkei Multi Purpose Company Limited
    Civil Appeal No 95 of 2017
  • Everret Aviation Limited v Kenya Revenue Authority
    [2013] eKLR
  • Zaraka Adoyo Bondo v TAI Shunjun
    Cause No 40 of 2014
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court limited to an employment relationship as defined in law (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, "Kabui v Lalani (Cause 1697 of 2017) [2023] KEELRC 777 (KLR)", Case Analysis (2023). Not specified in judgment (claim filed 21st April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/777/eng@2023-03-28

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