Matseshe v Busia Sugar Industry (Petition E008 of 2022) [2023] KEELRC 2906 (KLR)
The bottom line
#A worker who sued Busia Sugar lost because he could not prove he was actually their employee — paperwork matters.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to hear constitutionalised employment claims
The ELRC has jurisdiction to hear and determine constitutional violations arising in employment and labour disputes
Relying on Daniel N Mugendi v Kenyatta University, the court held that the Industrial Court (now ELRC) has jurisdiction and authority to consider claims of breach of fundamental rights pertaining to industrial and labour relations matters, per Article 162(2)(a) and section 12 of the ELRC Act. The Respondent's objection that the court could not determine constitutional issues therefore failed, but this did not assist the Petitioner as the substantive claim failed on proof.
Existence of an employment relationship
The Petitioner failed to prove he was an employee of the Respondent; he was, at most, a piece-rate worker engaged through the contractor Bethaniel Solutions and Services
The Petitioner produced only an unsigned weighment tag for a single day, which did not show an employment relationship. There was no evidence of continuous engagement, no employment application letter, no notice to produce documents, and no corroboration from co-workers. The contractor agreement confirmed tractor drivers were paid per tonnage on a piece-rate basis. The burden of proving employment lay on the Petitioner and never shifted to the Respondent.
Constructive dismissal and constitutional reliefs
The claim for constructive dismissal and related constitutional violations failed for want of proof of the employment relationship
Jurisdiction flowing from Article 162(2)(a) and section 12 of the ELRC Act presupposes an employer-employee relationship. Having failed to prove such a relationship, the Petitioner's claim for constructive dismissal and all related constitutional violations had no leg to stand. Section 47(5) of the Employment Act places the burden of proving wrongful dismissal on the employee.
Work injury claims under WIBA
The Court lacks jurisdiction over work injury claims, which fall under the exclusive mandate of the Director of Occupational Safety and Health Services under WIBA
WIBA is the specific legislation governing work-related injuries and diseases at the workplace, and the Employment Act does not apply. The court cannot overstep the mandate of the Director of Occupational Safety and Health Services; hence the prayers concerning injuries, WIBA contraventions and medical expenses failed for want of jurisdiction.
Legal principles established
#- The ELRC's jurisdiction over constitutional and employment claims is premised on the existence of an employer-employee relationship
- The burden of proving an employment relationship rests on the party asserting it and does not shift to the employer absent proof
- Work injury claims and remedies are exclusively regulated under WIBA, to the exclusion of the Employment Act
Court orders
#- 1.Declaration that the Petition is incompetent as there was no employer-employee relationship between the Petitioner and the Respondent
- 2.Finding that the Court lacks jurisdiction to hear and determine work injury and disease related claims, which is the exclusive mandate of the Director of Occupational Safety and Health Services under WIBA 2007
- 3.The Petition is dismissed
- 4.Costs to the Respondent
- 5.Stay of 30 days granted on execution of costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matseshe v Busia Sugar Industry (Petition E008 of 2022) [2023] KEELRC 2906 (KLR)", Case Analysis (2023). Petition dated 12th September 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2906/eng@2023-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.