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ELRCDismissedNot stated in the judgment (Statement of Claim dated February 17, 2021)· [2023] KEELRC 2061 (KLR)

Kutu v Anaali Kenya Ltd (Employment and Labour Relations Cause E128 of 2021) [2023] KEELRC 2061 (KLR)

Employment and Labour Relations Court
8 August 2023
AMAnna Ngibuini Mwaure
1,802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a Kshs 1.3 million salary claim because the worker could not actually prove an employment relationship existed.

What this practically means

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Executive summary

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The Claimant sued the Respondent claiming salary arrears of Kshs 1,320,000/- under an alleged oral employment agreement said to have run from 2018, together with interest, general damages and 12 months' maximum compensation, and injunctions restraining the Respondent's Director from leaving the court's jurisdiction until payment. He relied on a letter dated July 10, 2020 in which the Respondent purportedly acknowledged the arrears, undertaking to pay once it received funds from KERRA, and on company emails, SMS messages, business cards and membership of a WhatsApp group. The Respondent denied the employment relationship and alleged the July 10, 2020 letter was a forgery, reported at Kilimani Police Station (OB No 83/01/03/2021). The court framed two issues: whether the Claimant was employed by the Respondent, and whether he was entitled to the orders sought. Applying the statutory definitions in Section 2 of the Employment Act, the control and remuneration test from Ready Mixed Concrete, and the requirement of offer, acceptance and consideration, the court found the emails and messages did not refer to any employment relationship; the disputed letter, even if authentic, would only evidence a general debt; and the Claimant could not specify his employment date, salary or mode of payment, and had no NSSF or NHIF records. The claim was dismissed in its entirety, with each party to meet their own costs.

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 emails, SMS messages and the disputed letter did not establish a contract of service

Reasoning

The court applied the definition of employee, employer and contract of service under Section 2 of the Employment Act and the control/remuneration test from Ready Mixed Concrete. It found the emails and SMS did not refer to any employment relationship, the letter of July 10, 2020 was alleged to be forged and even if authentic would only allude to a general debt. The Claimant did not state when he was employed, his salary or how it was specified, and had no NSSF or NHIF records. The claim therefore failed.

p. 5
02

Whether a valid contract was proved

Holding

No; offer, acceptance and consideration were not proved

Reasoning

Relying on William Muthee Muthami v Bank of Baroda and Charles Mwirigi Miriti v Thananga Tea Growers Sacco, the court held that a valid contract requires offer, acceptance and consideration, and the Claimant failed to prove the validity of the alleged oral contract or any of these elements.

p. 5

Legal principles established

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  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment is on the employer
  • A claimant claiming employment rights must prove the existence of an employment relationship; the court must be fully satisfied it exists

Court orders

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  1. 1.The claimant's claim is dismissed and all the orders prayed in the claim are disallowed
  2. 2.Each party will meet their costs

Authorities

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Legislation

  • Employment Act, 2007Section 2
  • Employment Act, 2007Section 10(7)

Cases cited (5)

  • Omusamia vs Upperhill Springs Restaurant (Cause 852 of 2017) [2021] KEELRC 3 (KLR)
    [2021] KEELRC 3 (KLR)
  • Ready Mixed Concrete (South East) Limited vs Minister of Pensions and National Insurance
  • William Muthee Muthami versus Bank of Baroda
    (2014) eKLR
  • Charles Mwirigi Miriti versus Thananga Tea Growers Sacco Limited and Another
    (2014) eKLR
  • Kenya Union of Commercial Food & Allied Workers vs Mwana Black Smith Ltd
    (2013) eKLR
Jurisdiction invoked
First-instance employment claim under the Employment Act, 2007 (no specific constitutional provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kutu v Anaali Kenya Ltd (Employment and Labour Relations Cause E128 of 2021) [2023] KEELRC 2061 (KLR)", Case Analysis (2023). Not stated in the judgment (Statement of Claim dated February 17, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2061/eng@2023-08-08

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