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ELRCDismissedNot stated in judgment (Claim dated 14 July 2021, Amended Claim dated 9 June 2022)· [2024] KEELRC 426 (KLR)

Karisa & 21 others v Armo Aquarius Limited t/a Lily Palm Resort (Cause E009 of 2021) [2024] KEELRC 426 (KLR)

Employment and Labour Relations Court
29 February 2024
2,112 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Employment Court in Mombasa dismissed 18 hotel workers' redundancy claim because they could not prove which company actually employed them.

What this practically means

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Executive summary

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Eighteen claimants, former hotel workers in Watamu, Kilifi County, sued Armo Aquarius Limited claiming unfair redundancy declared on 30 March 2020, non-payment of severance pay, notice pay, public holidays pay, unpaid salaries, house allowances and 12 months' compensation for unfair termination. They asserted they were initially employed by Boci Boci (K) Limited trading as Aquarius Beach Resort and transferred to the respondent in 2012, thereafter working as employees of the respondent trading as Lily Palm Resort. The respondent denied ever being an employer, contending it was only a managing company for Boci Boci (K) Limited under a five-year contract that lapsed in 2017 without renewal, that it owned no hotel in Watamu, and that the claim was fatally defective for confusing Boci Boci (K) Limited with Armo Aquarius Limited. The respondent did not attend court or call witnesses. The claimants relied on the testimony of the 18th claimant, Jefferson Katana, and produced transfer notices, payment statements, leave forms and union membership cards. The court framed three issues: the existence of an employment relationship, whether there was a redundancy, and whether the orders sought should issue. It found disparities in the documents as to who the employer was, noted that a limited liability company sues and is sued in its own name, and held that the claimants, despite an amendment opportunity following the ruling of 20 December 2021, failed to discharge the burden of establishing the employer. The claim was dismissed with no orders on costs.

Key legal issues

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01

Whether an employment relationship existed between the claimants and Armo Aquarius Limited

Holding

The claimants failed to discharge the burden of proving that the respondent was their employer; the records disclosed disparities (Boci Boci (K) Limited, Armo Aquarius Limited, Lily Palm Resort) and the respondent's assertion that its management contract ended in 2017 was unrebutted with evidence

Reasoning

The court reviewed the transfer notices, payment statements, leave forms and union membership cards and found disparities in who the employer was. The respondent denied ever owning a hotel or employing the claimants and asserted a lapsed management contract, but was not required to adduce evidence since the claimants bore the burden. Despite an amendment opportunity after the 20 December 2021 ruling, the claimants did not resolve the question of who the employer was.

p. 6
02

Whether there was a redundancy declared by the respondent

Holding

Not established; the alleged verbal redundancy notices of 30 February 2020 were not proved to have issued from the respondent, no redundancy situation was demonstrated against it

Reasoning

Since the employment relationship was not established, the question of redundancy could not arise. The claimants alleged verbal redundancy notices dated 30 February 2020, a date which does not exist, and relied on documents the respondent disowned. The court found that proceeding further without establishing employment would be purely academic.

p. 6
03

Whether the orders sought should be issued

Holding

The reliefs were refused and the claim dismissed with no order as to costs

Reasoning

Having found the claimants failed to prove the employment relationship, the court held the claim without merit. The claim was dismissed and no orders on costs were made, despite the claimants' request that the respondent pay costs.

p. 6

Legal principles established

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  • A claimant who sues a party that challenges the employment relationship bears the burden of establishing who the employer was before relief can be granted
  • A limited liability company sues and is sued in its own name, distinct from any trade name

Court orders

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  1. 1.The claim is dismissed
  2. 2.No orders on costs

Authorities

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Cases cited (1)

  • Kyalo Alex David v Serena Beach Resort & Spa
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under employment and labour relations (statute not expressly cited in the judgment)

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, "Karisa & 21 others v Armo Aquarius Limited t/a Lily Palm Resort (Cause E009 of 2021) [2024] KEELRC 426 (KLR)", Case Analysis (2024). Not stated in judgment (Claim dated 14 July 2021, Amended Claim dated 9 June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/426/eng@2024-02-29

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