Hamisa v Karisa (Appeal E066 of 2023) [2023] KEELRC 3461 (KLR)
The bottom line
#Kenya's Employment Court ruled that a company's operations manager can't be sued personally for a worker's dues unless an employment relationship with them is first proven.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship between the parties
No employment relationship was established between the respondent and the appellant; the respondent admitted being aware of the company and that wages were paid by his supervisor Shukri, never by the appellant
The respondent testified he was hired by Shukri, guarded the Mtwapa farm, and was paid through Shukri. He admitted having wrongly sued Fayaz. The appellant produced a letter of appointment dated 2 June 2015 showing the respondent as an employee of Fayyaz Bakery Limited. The nexus between the respondent and the appellant within an employment relationship was lost, so the core foundational claim failed.
Lifting of the corporate veil by the trial court
The trial court erred: lifting the corporate veil was premature before establishing an employment relationship, and Fayyaz Bakery Limited was not a party to the suit
The respondent should have amended his pleadings to include Shukri and Fayyaz Bakery Limited once the appellant denied the employment relationship and produced the appointment letter. Proceeding against the appellant by piercing the veil without first establishing the employment relationship, and against a non-suited company, was error rendering the judgment unsustainable.
Jurisdiction of the trial court
Without an employment relationship, the lower court lacked jurisdiction over the employment claims and ought to have declined to assess terminal dues
The court reasoned that the question of the employment relationship was so fundamental that, absent it, the suit was not properly before the trial court; it should have 'downed its tools'. Assessing terminal dues against a non-suited party was therefore an error going to jurisdiction.
Legal principles established
#- Upon a claim being filed, the employer has a duty to submit work records under Section 10(6) and (7) of the Employment Act, 2007, and once produced they are primary and lawful evidence unless negated
- An employment relationship must first be established before a court can lift the corporate veil to fix personal liability on an individual
- Without an employment relationship, the court lacks jurisdiction over employment claims
Court orders
#- 1.The appeal succeeds
- 2.The judgment in Lamu CMELRC No. E03 of 2021 is set aside in its entirety
- 3.Each party to bear own costs for the appeal and the proceedings before the lower court
- On appeal from
- Magistrates' Court (ELRC), Lamu
- Lamu CMELRC No. E03 of 2021
- Jurisdiction invoked
- First appeal from the subordinate court in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisa v Karisa (Appeal E066 of 2023) [2023] KEELRC 3461 (KLR)", Case Analysis (2023). Lamu CMELRC Appeal arising from Lamu CMELRC No. E03 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3461/eng@2023-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.