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ELRCDismissedNot stated in judgment· [2024] KEELRC 6 (KLR)

Eregwa v Wameer Wholesellers and Distributors Ltd (Employment and Labour Relations Appeal 30 of 2022) [2024] KEELRC 6 (KLR)

Employment and Labour Relations Court
23 January 2024
HWHellen Wasilwa
2,703 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker who sued a company for unpaid dues lost because records proved he was actually employed by the director personally, not the company.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court from the judgment of Hon. Y.I Khatambi (PM) of November 18, 2022 in Nakuru CMERLC Cause No. E90 of 2021, which dismissed a claim for underpayments, unpaid salaries, overtime, off-duty days and public holidays. The appellant, a night watchman and later general worker, claimed he was verbally employed by the respondent from June 2013 to September 2020. The respondent maintained that the appellant was employed by its late director, Shamshudin Abdul Musa, to guard his private residence, relying on NSSF records showing the deceased as the employer. Before the High Court on appeal, the appellant argued that the respondent's letter of November 4, 2020 to NSSF and the absence of security outsourcing contracts for 2013-2017 proved the employment relationship, and relied on authorities on limitation of underpayment claims. The respondent countered that NSSF rejected the first letter and released pension only after a second letter was written under the deceased's name, and that the appellant admitted receiving salary from the deceased. Justice Hellen Wasilwa rehearsed the evidence as required on a first appeal, found the NSSF records confirmed the deceased as employer, held that the appellant failed to discharge the burden of proving employment with the respondent, and found no error in the trial court's careful analysis. The appeal was dismissed with costs to the respondent on January 23, 2024.

Key legal issues

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01

Employer-employee relationship

Holding

The appellant failed to prove he was the respondent's employee; NSSF records showed the late Shamshudin Abdul Musa as his employer

Reasoning

The NSSF statement did not list the appellant as the respondent's employee. The respondent's director had to author a second letter under the deceased's name to release pension dues after NSSF rejected the first. The appellant admitted in cross-examination receiving salary from the deceased and working at his residence. No contrary evidence linked the appellant to the respondent, so the trial court's finding could not be disturbed.

p. 5
02

Interference with first-instance findings on appeal

Holding

The trial court carefully analysed the facts and made a proper finding; no error warranted interference

Reasoning

The court rehearsed the evidence and submissions, applied the burden of proof, and concluded that the magistrate's finding on employment status was correct, meaning the appeal could not succeed.

p. 6

Legal principles established

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  • The burden of proving an employment relationship lies on the party alleging it
  • On a first appeal, the court is obliged to re-analyse the facts afresh and make its own findings

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Employment ActSection 90
  • Labour Institutions Act 2007Section 48

Cases cited (6)

  • Kathra Hussein Noor & Another Vs Kaderdina Hajee Essak Limited
    [2016] eKLR
  • David Wanjau Muhoro v. Ol Pajeta Ranching Limited
    [2014] e-KLR
  • Republic Vs Rosemary Wairimu Munene, Ex parte Applicant and Ihururu Dairy Farmers for Co-operative Society ltd
  • Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another
    [2016] eKLR
  • Jacinta Mwenga Nyamai V Trace wood Limited
    [2021] eklr
  • John Matete Abayo v Digital Imaging Systems Limited
    [2018] eKLR
On appeal from
Nakuru Chief Magistrate's Court (ELRC)
CMERLC Cause No. E90 of 2021
Jurisdiction invoked
First appeal from the subordinate court's employment cause

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, "Eregwa v Wameer Wholesellers and Distributors Ltd (Employment and Labour Relations Appeal 30 of 2022) [2024] KEELRC 6 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/6/eng@2024-01-23

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