Westbuild General Contractors Ltd v Ntinyari & 17 others & another (Employment and Labour Relations Appeal E001 of 2023) [2023] KEELRC 2265 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the appellant was the employer of the 1st respondents
The appellant was not the employer; the employees belonged to the 2nd respondent (supervisor's representative). The appellant merely paid them as paymaster/agent and was entitled to reimbursement.
Clause 01-08-030 of the Works Contract required the contractor to pay wages of attendant stafi belonging to the Engineer. The witnesses admitted under oath that they were interviewed, instructed and supervised daily by the 2nd respondent. Payment of salaries, issuance of pay slips and remission of statutory deductions were done as agent, which does not create a contract of service with the appellant.
Whether the trial court refused to join the Ministry of Transport and Infrastructure as third party
The trial court had in fact allowed the joinder; the third party participated in the trial, and the suit against it was merely dismissed after hearing. The ground of appeal was unfounded.
The typed proceedings showed the application to join the Ministry was granted, a preliminary objection against the joinder was dismissed, and the third party filed a defence and participated in the trial. The court only dismissed the suit against the third party after the hearing, so the appellant could not fault it for refusing joinder.
Who is liable to pay the 1st respondents' dues
The 2nd respondent is liable in law as employer; the appellant is also liable under the project contract as paymaster, with entitlement to reimbursement/indemnity from the contracting authority.
Having found the 2nd respondent was the employer, the primary duty to pay salary and terminal dues lies with it. However, under the project contract the appellant was bound to pay the stafi and seek reimbursement, making it liable as well. Apportionment of liability was rejected as the contract placed the payment duty on the appellant.
Whether the award of Kshs 7,741,334.72 should stand
The award of 16 months' salary was unsupported by evidence; it was reduced to 7 months' gross salary (6 months' unpaid salary November 2018 to April 2019 plus one month in lieu of notice), aggregating Kshs 4,202,171.40.
Evidence showed non-payment only from November 2018 to April 2019, i.e. six months, not sixteen. The court therefore interfered with the quantum and re-assessed each employee's award at 7 months' gross salary. The claim for salary increment arrears was set aside for want of particulars and evidence.
Legal principles established
#- There cannot be an employer/employee relationship without existence of a contract of service.
- A contractor paying a supervisor's stafi as paymaster under a project contract does not thereby become their employer.
- A first appellate court re-evaluates evidence and does not interfere with findings of fact not shown to be unsupported by evidence or based on misapprehension of law.
Court orders
#- 1.The respondents' are entitled to Kshs 4,202,171.40.
- 2.The 2nd respondent and the appellant are liable, individually and severally, to the said sum to the 1st respondent.
- 3.The 2nd respondent and the appellant are entitled to indemnity from the contracting authority, Ministry of Transport and Infrastructure for any money they shall pay the 1st Respondent in settlement of the decretal sum.
- 4.The award shall be subject to statutory deductions.
- 5.Each party shall bear own costs of the appeal.
- On appeal from
- Magistrates' Court (ELRC)
- Not stated
- Jurisdiction invoked
- First appeal under ELRC jurisdiction (Employment and Labour Relations Court Procedure Rules invoked; first appellate re-evaluation mandate)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Westbuild General Contractors Ltd v Ntinyari & 17 others & another (Employment and Labour Relations Appeal E001 of 2023) [2023] KEELRC 2265 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2265/eng@2023-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.