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ELRCDismissedCause No E1025 of 2021· [2023] KEELRC 2413 (KLR)

Kimani v Kenya Bus Management Limited (Cause E1025 of 2021) [2023] KEELRC 2413 (KLR)

Employment and Labour Relations Court
6 October 2023
SRStella Rutto
2,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a PSV badge alone doesn't prove you work for a bus company's franchisor, dismissing a driver's entire unfair termination claim.

What this practically means

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Executive summary

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The Claimant sued the Respondent, a bus transport franchising company, claiming he was orally employed as a driver from 18th March 2019 and was terminated after the Covid-19 period on the ground that he was over 60 years old. He sought a certificate of service, sleep out allowances, notice pay, unpaid leave and house allowances, service pay, overtime pay, compensatory damages and NHIF/NSSF contributions. The Respondent denied employing him, contending it was a franchisor which licensed bus owners to use its brand in exchange for a daily franchise fee, and that the Claimant was employed by franchisees who owned the vehicles. At trial, the Claimant relied on a PSV badge bearing the Respondent's name, a driver's checklist and a Huduma acknowledgement slip showing a driver number. The Respondent produced MOUs with franchisees, Daily Bus Revenue Return Forms and log books. The court framed three issues: existence of an employment relationship, fairness of termination, and entitlement to reliefs. The court found the Claimant's driver number appeared on revenue return forms for vehicles whose franchisees were identified in the Respondent's MOUs as their registered owners, and that clause 5.4 of the MOU obliged franchisees to employ staff. The PSV badge was held not to be conclusive proof of employment given the franchise arrangement. The court concluded the relationship fell outside the Employment Act and no action could lie against the Respondent. The claim was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Whether the Claimant was an employee of the Respondent

Holding

The Claimant was not an employee of the Respondent; on the evidence, including the driver number appearing on Daily Bus Revenue Return Forms matching the Respondent's MOUs with franchisees, he was more probably an employee of the franchisees who owned the motor vehicles.

Reasoning

The Claimant's driver number (1304-1649) matched driver numbers on Daily Bus Revenue Return Forms for vehicles KCB 028Y and KBC 377G, whose franchisees were identified in the Respondent's MOUs as Samuel Nyangera Akuma and Amos Ogutu Wandago, the registered owners. Clause 5.4 of the MOU obliged franchisees to employ staff. The PSV badge was not conclusive given the franchise arrangement under which franchisees used the Respondent's name, logo and colours.

p. 5
02

Whether the termination was unfair and unlawful and whether reliefs were payable

Holding

Not determined; without proof of an employment relationship with the Respondent, there is no foundation for a claim of unfair termination.

Reasoning

The court held that since proof of an employment relationship is foundational to a claim of unlawful termination, it could not assess the fairness of termination without that foundation. Having found the Claimant was not the Respondent's employee, no rights or responsibilities accrued between the parties and no action could lie against the Respondent. It was therefore unnecessary to consider the reliefs claimed.

p. 5

Legal principles established

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  • A PSV badge issued in the name of the franchisor is not conclusive proof of employment with the franchisor, given the nature of a franchise arrangement
  • The employer's statutory duty to maintain records and prove contractual terms under sections 10 and 74 of the Employment Act arises only where an employment relationship is not disputed or is already established
  • Proof of an employment relationship is the foundation of a claim for unfair termination

Court orders

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  1. 1.The Claim is dismissed in its entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment Actsections 10(6) and (7), 74
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Wycliffe Shijedi Jeti v Martin Gathumbi
    (2019) eKLR
  • Godfrey Allan Tolo v Tobia O. Otieno & another
    (2022) eKLR
  • Nathan Ogada Atiagaga v David Engineering Limited
    (2015) eKLR
  • Omusamia v Upperhill Springs Restaurant
    (Cause 852 of 2017) [2021] KEELRC 3(KLR)
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims

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, "Kimani v Kenya Bus Management Limited (Cause E1025 of 2021) [2023] KEELRC 2413 (KLR)", Case Analysis (2023). Cause No E1025 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2413/eng@2023-10-06

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