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ELRCDismissed· [2023] KEELRC 1306 (KLR)

Ndoli v Eggen Joinex Limited (Employment and Labour Relations Cause 109 of 2018) [2023] KEELRC 1306 (KLR)

Employment and Labour Relations Court
23 May 2023
NMNzioki wa Makau
3,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant sued the Respondent alleging that he was employed from November 2012, initially as a casual labourer paid daily wages, and that his services were terminated in January 2018 on account of redundancy. He sought one month's salary in lieu of notice, service pay, leave for seven years, house allowance, severance pay and twelve months' salary for unlawful termination. The Respondent denied being his employer in the permanent sense, asserting he offered casual services from time to time and that his services were never terminated; work at the Two Rivers Mall site had simply ceased. The Respondent's witness, Michael Rotich, employed only in 2022, testified that casuals were advised to await further instructions. The court found the Claimant's evidence equivocal and inconsistent: he gave differing daily wage figures (Kshs 900 and Kshs 1,100) and differing weekly figures in his pleadings. Payment vouchers produced by the Respondent showed varying payments depending on days and hours worked, including overtime, and indicated Kshs 900 per day at the end. The Claimant's NSSF statement related to a different company and period. The court rejected his reliance on section 10(7) of the Employment Act to shift the burden of proof, holding the vouchers demonstrated casual, intermittent engagement. It held that redundancy was not proved; what ended was the assignment at the site. The claim was dismissed with costs to the Respondent.

Key legal issues

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01

Employment status - employee or casual labourer

Holding

The Claimant was employed as a casual labourer with intermittent engagements and did not prove elevation to permanent employment

Reasoning

The court found the Claimant's evidence equivocal on wages (Kshs 900 vs Kshs 1,100 per day) and inconsistent pleadings on weekly earnings. Payment vouchers showed varying sums depending on days and hours worked. The Claimant admitted in cross-examination that he was not a permanent employee, and his NSSF statement referred to a different employer and period.

p. 5
02

Whether termination on account of redundancy was proved

Holding

The Claimant failed to prove redundancy; what ended was the assignment at the Two Rivers Mall site, not his employment

Reasoning

The court held that the end of the client contract at the site explained the cessation of work. The Respondent's witness testified casuals were advised to await further instructions. The Claimant misconstrued the substituted witness statement as referring to termination of his employment rather than of the Respondent's agreement with its client.

p. 5
03

Burden of proof under section 10(7) of the Employment Act

Holding

Section 10(7) did not assist the Claimant because the Respondent admitted the engagements and produced vouchers evidencing casual payment

Reasoning

The Respondent admitted the Claimant worked at various times from 2012 and availed petty cash vouchers showing payment varying by days and hours worked, including overtime payments. The Claimant could have demanded all vouchers in his name but did not, and he produced no documentary evidence of payments, his NSSF statement relating to another employer and period.

p. 5

Legal principles established

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  • Redundancy as a reason for terminating services is an affirmative reason that must be pleaded and specifically proven
  • Where a claimant relies on section 10(7) of the Employment Act to shift the burden of proof, the court will examine the actual evidence of payments and engagements before believing the claimant's assertions

Court orders

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  1. 1.Suit dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment Actsection 10(7)
  • Employment Actsections 20 and 74
  • Employment Actsection 35(6)
  • Employment Act, 2007sections 19 and 20
  • National Health Insurance Fund Act No 9 of 1998section 1(A)
  • Income Tax Act Cap 470 Laws of Kenyasection 5

Cases cited (1)

  • Silas Mutwiri v Haggai Multi-Cargo Handling Services Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment 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, "Ndoli v Eggen Joinex Limited (Employment and Labour Relations Cause 109 of 2018) [2023] KEELRC 1306 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1306/eng@2023-05-23

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