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ELRCDismissedNot stated in judgment· [2024] KEELRC 284 (KLR)

Laberty & 13 others v Odera & another (Employment and Labour Relations Cause 93 of 2017) [2024] KEELRC 284 (KLR)

Employment and Labour Relations Court
15 February 2024
MNMathews N. Nduma
2,115 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed 14 workers' claims over Congo jobs because they couldn't prove unpaid wages and worked abroad without valid permits.

What this practically means

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Executive summary

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Fourteen claimants sued Sam Odera (1st respondent), who recruited them in Kenya, and Crosslink Services Limited (2nd respondent), alleging unpaid salary, reimbursement of expenses incurred in travelling to and working in the Democratic Republic of Congo, general damages, interest and costs. They testified through the 3rd claimant that they resigned from jobs in Kenya, funded their own travel on a promise of reimbursement, and worked in poor conditions in the DRC from February 2016, returning to Kenya in June 2016 after partial payment. The 1st respondent denied being the employer, asserting the claimants were employed by Crosslink Services (Rwanda) Limited and were paid up to 30th June 2016. The court framed two issues: who the employer was, and whether the claims were proved. It held the 2nd respondent, Crosslink Services (Kenya), was the employer on the face of the contracts, but that the 1st respondent's personal recruitment role did not make him liable absent grounds to pierce the corporate veil. The claims failed on proof: no specific liquidated amounts were pleaded, the reimbursement claim lacked documentary support, and RW1's evidence of payment to 30th June 2016 was unrebutted. The court further held it could not enforce contracts for work performed in the DRC without valid permits, so general damages were unavailable and the terminations were valid, while criticising both the recruiter and the claimants' lack of due diligence. The entire suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Identity of the employer

Holding

The 2nd respondent, Crosslink Services (Kenya), was the employer; the claim that Crosslink Services Rwanda employed the claimants lacked evidential support.

Reasoning

The contracts of employment dated 17th March 2016 were on the letterhead of 'Crosslink Services', were signed in Kenya, and stated they were made in accordance with the Employment Act between the claimants and Crosslink Services of Nairobi. RW1's assertion that the employer was the Rwandan sister company was unsupported by tangible evidence. However, the 1st respondent's personal role as recruiter did not make him individually liable absent grounds to pierce the corporate veil.

p. 4
02

Proof of unpaid salary and expenses

Holding

Claims for unpaid salary and travel expenses failed for want of proof; RW1's evidence of payment up to 30th June 2016 was credible and unrebutted.

Reasoning

The memorandum of claim did not disclose monthly earnings, the number of months unpaid, or specific liquidated amounts. RW1 testified that, except for claimants 7 and 10 who absconded and 3 and 6 who were deported, all were paid and signed for salaries to 30th June 2016. No documentary evidence substantiated the reimbursement claim. Under sections 107 and 108 of the Evidence Act, the claimants bore and failed to discharge the burden of proof.

p. 5
03

Enforceability of contracts for illegal employment

Holding

Contracts could not be enforced for general damages because the claimants worked in the DRC without valid work permits; the terminations were valid.

Reasoning

The claimants admitted they never obtained work visas or permits and worked for four months illegally in the DRC. The court declined to enforce the contracts for the unserved remainder periods and found termination valid since the claimants lacked lawful authority to remain and work. The court also criticised the recruiter for relocating workers without assurance of permits, while observing the claimants failed to exercise due diligence.

p. 5

Legal principles established

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  • He who alleges must prove on a balance of probability; a claimant must plead and prove specific liquidated amounts claimed.
  • Courts will not enforce contracts of employment for work performed illegally, without valid work permits in a foreign country.
  • A recruiting agent's admission that he personally recruited claimants does not of itself make him personally liable absent justification to pierce the corporate veil.

Court orders

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  1. 1.The claim for reimbursement of travel expenses is dismissed
  2. 2.The prayer for general damages is dismissed
  3. 3.The entire suit is dismissed
  4. 4.Each party to meet their own costs of the suit

Authorities

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Legislation

  • Employment ActNot specified
  • Evidence Act Cap 80 Laws of KenyaSections 107 and 108
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act (first-instance claim; specific enabling provision not stated)

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, "Laberty & 13 others v Odera & another (Employment and Labour Relations Cause 93 of 2017) [2024] KEELRC 284 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/284/eng@2024-02-15

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