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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 1119 (KLR)

Kenya Union of Domestic, Hotels Education Institutions and Hospital Workers v Abdalla (Cause 47 of 2019) [2023] KEELRC 1119 (KLR)

Employment and Labour Relations Court
27 April 2023
ANAGNES KITIKU NZEI
1,453 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan domestic worker lost her entire claim because she couldn't prove she was actually employed, giving three conflicting employment dates in court.

What this practically means

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Executive summary

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The Claimant sued the Respondent claiming she had been employed as a domestic worker and wrongfully, unlawfully and unfairly terminated without notice or a hearing, contrary to Sections 17, 18, 35, 36, 41, 43, 45, 46 and 49 of the Employment Act. She sought one month's salary in lieu of notice, underpayment of wages, unpaid leave, service pay, unpaid salary for July 2018, compensation for public holidays, twelve months' salary compensation for unlawful termination, a certificate of service, costs and interest, totalling Kshs. 525,143. The Respondent denied ever employing the Claimant, asserting she had only given her shelter and assistance out of religious charity between about 2017 and 2019, and that the Claimant left after disappearing for days. At trial, the Claimant adopted her witness statement but gave three different dates of employment: 20th March 2013 as pleaded, 3rd October 2016 in her witness statement, and 5th November 2015 in oral testimony. She admitted having no written contract or documentary evidence of payment. The court framed two issues: whether the Claimant was employed by the Respondent, and whether she was entitled to the reliefs sought. Applying the authorities on burden of proof and the binding nature of pleadings, the court held that the conflicting evidence materially contradicted the pleadings, was devoid of evidential value, and had to be disregarded. The court found the Claimant had totally failed to prove an employment relationship, dismissed the entire suit, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the Claimant proved an employment relationship with the Respondent

Holding

The Claimant failed to prove employment; she gave three conflicting dates of employment which materially contradicted her pleadings.

Reasoning

The Claimant pleaded employment from 2013, stated 3rd October 2016 in her witness statement, and testified to 5th November 2015 in court. The court held that such conflicting evidence not founded on the pleadings is devoid of evidential value and must be disregarded. Applying the cited authorities on burden of proof and the binding nature of pleadings, the court found no proof of an employment relationship.

p. 3
02

Whether the Claimant is entitled to the reliefs sought

Holding

Having failed to prove employment, the Claimant is not entitled to any of the reliefs claimed.

Reasoning

All reliefs (notice pay, underpayment, leave, service pay, salary arrears, public holidays compensation, 12 months' compensation for unlawful termination, certificate of service) depended on proof of the employment relationship, which failed. The claim was therefore dismissed in its entirety.

p. 4

Legal principles established

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  • Even without documentary proof of employment, the claimant retains the burden of proving the employment relationship through viva voce evidence.
  • Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded.

Court orders

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  1. 1.The suit is hereby dismissed.
  2. 2.Each party will bear its own costs of the suit.

Authorities

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Legislation

  • Employment ActSections 17, 18, 35, 36, 41, 43, 45, 46 and 49

Cases cited (5)

  • Mary Mmbone Mboyi -vs- Chandubhai Patel & Another
    Industrial Cause No. 761 of 2011
  • Zarika Adoyo Obondo -vs- Tai Shunjun & Another
    [2020] eKLR
  • Daniel Otieno Migore -vs- South Nyanza Sugar Company Limited
    [2018] eKLR
  • Independent Electoral And Boundaries Commission & Another -vs- Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • Adetoun Oladeji [Nig] vs- Nigeria Breweries PLC
    SC 91/2002
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 17, 18, 35, 36, 41, 43, 45, 46 and 49 invoked in the claim)

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, "Kenya Union of Domestic, Hotels Education Institutions and Hospital Workers v Abdalla (Cause 47 of 2019) [2023] KEELRC 1119 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1119/eng@2023-04-27

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