Ngui v Termi-Lever Services Limited (Cause 2108 of 2017) [2024] KEELRC 96 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was a permanent employee or a casual labourer
The court found the Claimant was a casual employee paid for days worked, not a permanent and pensionable employee on a monthly salary
The Mpesa payments lacked uniformity, fluctuating between Kshs.400/= and Kshs.7,100/= and did not add up to the alleged Kshs.18,000/= monthly salary in any month except one. Payments corresponded to days worked, consistent with the statutory definition of a casual employee under Section 2 of the Employment Act. The Claimant also did not avail Mpesa statements for 2013 and 2014.
Whether the Claimant was employed in 2007 before the Respondent's incorporation
The Claimant failed to prove employment before 2012; the Respondent was incorporated on 20th May 2009 and could not have contracted earlier
Other than the Claimant's bare assertion of employment in 2007, there was no supporting evidence. The Certificate of Incorporation dated 20th May 2009 showed the company did not exist in 2007, and no pre-incorporation contract with an agent followed by a post-incorporation contract was proved.
Whether the Claimant was declared redundant or unfairly terminated
The Claimant failed to discharge his burden of proving redundancy or unfair termination
The alleged call from a nameless secretary was unsupported by any evidence; the original 2017 statement made no reference to downsizing, and the dates of termination differed between pleadings. The court found the amendment was tailored to fit the Mpesa records. Under Section 47(5) the burden of proving unfair termination rests on the employee, and no semblance of redundancy or unfair termination was established.
Entitlement to a certificate of service
The Claimant is entitled to a Certificate of Service under Section 51 of the Employment Act
Regardless of the failure of the main claim, Section 51 of the Employment Act entitles an employee to a certificate of service, and the court ordered the Respondent to issue one within 30 days.
Legal principles established
#- The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds for termination rests on the employer (Section 47(5), Employment Act)
- A company cannot be bound by contracts purportedly made before its incorporation unless after incorporation it enters a new contract to the same effect
- General damages are not available in contracts of employment
- An employee is entitled to a certificate of service under Section 51 of the Employment Act
Court orders
#- 1.The Claimant's suit is dismissed
- 2.Respondent to issue a Certificate of Service within 30 days
- 3.Parties shall bear own costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment Act, 2007); judgment delivered under Article 159(2)(d) and Article 48 of the Constitution, Section 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngui v Termi-Lever Services Limited (Cause 2108 of 2017) [2024] KEELRC 96 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/96/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.