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ELRCDismissedNot stated in judgment· [2023] KEELRC 2375 (KLR)

Kenya Building Construction Timber Furniture Industries Employees Union v Asapura Company Limited (Cause 67 of 2019) [2023] KEELRC 2375 (KLR)

Employment and Labour Relations Court
28 September 2023
MMM. Mbarũ
872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a worker's terminal dues claim because he could not prove he was actually employed by the company he sued.

What this practically means

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Executive summary

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The claimant, a registered trade union, sued on behalf of its member Garama Kahindi Menza, seeking terminal dues arising from alleged employment as a joinery carpenter from 9 July 2013 at Ksh 890 per day, until 11 August 2018 when he was allegedly told not to report back. The reliefs sought were two months' notice pay (Ksh 46,280), unpaid 52 leave days (Ksh 46,280), service gratuity at 15 days per completed year (Ksh 145,960), a certificate of service and costs. There was no recognition agreement or CBA; the parties were governed by the Regulation of Wages (General) Orders 2018 and the Employment Act. The respondent denied employing the grievant, producing muster rolls (2016-2018) and NHIF remittance records that did not list him, and explaining that it secured construction sites and outsourced labour to contractors. Its clerk and supervisor, Kazungu Kea Mzungu, testified the grievant was not among its employees. The grievant testified he was paid weekly in cash by different persons at different sites and never at the respondent's offices, and that the persons who paid and supervised him were themselves not on the respondent's records. The court found the respondent's denial of employment correct, holding that proof of an employment relationship is crucial and foundational to a claim before the ELRC and that, absent such proof, the court is denied jurisdiction. Assessing the claims would be purely academic. The claim was dismissed with no orders on costs, delivered at Mombasa on 28 September 2023.

Key legal issues

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01

Existence of an employment relationship between the grievant and the respondent

Holding

The court found no employment relationship; the grievant's services were secured by different persons at different sites and the respondent's records (muster roll, NHIF records) did not list him.

Reasoning

The grievant testified he was paid daily wages by different persons (Frederick Masanju, Musyoka) at different sites and never at the respondent's offices. The respondent produced muster roll and NHIF records showing the grievant was not among its employees. The respondent explained it secured construction sites and outsourced labour to contractors. Given the nature of the construction business, the court found the respondent's explanation plausible and its denial of employment correct.

p. 3
02

Jurisdiction of the court where employment is not established

Holding

Without an established employment relationship, the court is without jurisdiction and assessing the claims would be academic.

Reasoning

The court held that proof of employment is crucial and foundational to filing a claim before the ELRC; in its absence the court is denied jurisdiction and must stop at that point rather than assess the terminal dues claimed.

p. 3

Legal principles established

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  • Proof of an employment relationship is foundational to a claim before the ELRC; where none exists, the court is denied jurisdiction.

Court orders

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  1. 1.The claim herein is dismissed.
  2. 2.No orders on costs.

Authorities

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Legislation

  • Regulation of Wages (General) Orders2018 edition (as governing the parties' employment terms)
  • Employment ActNot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction premised on an employment relationship between the grievant and the respondent; Regulation of Wages (General) Orders 2018 and the 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, "Kenya Building Construction Timber Furniture Industries Employees Union v Asapura Company Limited (Cause 67 of 2019) [2023] KEELRC 2375 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2375/eng@2023-09-28

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