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ELRCDismissedNot stated in judgment· [2023] KEELRC 2471 (KLR)

Mutashi v Enterprises (Cause 2110 of 2016) [2023] KEELRC 2471 (KLR)

Employment and Labour Relations Court
17 October 2023
JGJacob Gakeri
2,787 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a wrongful dismissal claim because the worker could not prove he was actually employed, even though no one defended the case.

What this practically means

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Executive summary

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The Claimant sued the Respondent for wrongful dismissal and non-payment of terminal dues of Kshs.941,867/=, alleging he was employed on 12th July 2012 as a turn boy at Kshs.7,500/= per month by the Respondent, trading as Ramviir Enterprises and later Amity Enterprises, and was terminated on 5th January 2016 without notice, hearing or payment of dues. The Respondent filed no defence; its application for leave to do so was dismissed on 21st March 2023 and the suit proceeded for formal proof, though Respondent's counsel cross-examined the Claimant and filed submissions. The Claimant adopted an unauthenticated written statement and, on cross-examination, admitted he had no documentary evidence of the employment, salary payments via M-PESA, NSSF contributions, the vehicle he worked on, or the existence of the two enterprises; he also gave inconsistent testimony on whether he was driver or turn boy. The court framed three issues: existence of an employment relationship, unfair termination, and reliefs. Relying on Section 2 of the Employment Act and authorities, it held that even in an undefended claim the Claimant bears the burden of proving the employment relationship on a preponderance of probabilities, and that his uncorroborated oral testimony fell below this threshold. Lacking an employment relationship, the court held it had no jurisdiction and was obligated to down its tools. The suit was dismissed with no orders as to costs; the remaining issues were not determined.

Key legal issues

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01

Existence of employer/employee relationship

Holding

Not proved; the suit was dismissed for want of proof

Reasoning

The Claimant relied exclusively on oral testimony with no corroboration: no appointment letter, payslip, M-PESA records, NSSF statement or notice to produce. Citing the Evidence Act principles and case law, the court found the testimony fell below the preponderance of probabilities threshold. In the absence of an employment relationship, the court lacked jurisdiction to proceed and downed its tools.

p. 6
02

Whether termination was unfair

Holding

Not determined - dependent on the failed first issue

Reasoning

Having found no employment relationship, the court held the remaining issues were no longer amenable to determination. The Respondent had argued, citing Section 47(5) of the Employment Act and Protus Wanjala Mutike, that unfair termination could not arise where the relationship was unproven.

p. 7
03

Entitlement to reliefs

Holding

None awarded

Reasoning

Since no employment relationship existed, no reliefs could issue. The Respondent did not enter appearance substantively; no response was filed after its leave application was dismissed, and the suit proceeded to formal proof.

p. 7

Legal principles established

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  • The burden of proving the existence of an employment relationship lies on the Claimant on a balance of probabilities, even in an undefended suit
  • In an undefended claim, the claimant must establish the existence of an employment relationship as a preliminary issue before unfair termination

Court orders

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  1. 1.The suit was dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 41
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 2(1)
  • Employment Act, 2007Section 2
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Evidence ActNotice to produce provisions
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Employment and Labour Relations Court Act2011

Cases cited (11)

  • Peter Ngunjiri Kariuki v Board of Management Magomano Secondary School
    [2022] eKLR
  • Samuel Wambugu Ndirangu v 2NK Sacco Society Ltd
    [2019] eKLR
  • Casmir Nyankuru Nyaberi v Mwakikar Agencies Ltd
    [2016] eKLR
  • Joseph Munene Murage V Salome Ndung'u
    [2019] eKLR
  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • David Radu v Malindi Water & Sewerage Co. Ltd
    [2013] eKLR
  • Linic Enterprises Ltd v Savannah Cement Ltd
    [2022] eKLR
  • George Onyango Ochieng v Chemilil Sugar Co. Ltd
    [2014] eKLR
  • Protus Wanjala Mutike v Anglo African Properties t/a Jambo Mutara Lodge Laikipia
    [2021] eKLR
  • Humphrey Munyithia Mutemi v Soluxe International Group of Hotels and Lodges Ltd
    [2020] eKLR
  • Monica Kanini Mutua v Al-Arafat Shopping Centre and another
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011; employment and labour relations and connected purposes

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, "Mutashi v Enterprises (Cause 2110 of 2016) [2023] KEELRC 2471 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2471/eng@2023-10-17

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