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ELRCDismissedNot stated in the judgment· [2024] KEELRC 602 (KLR)

Saleh v Pride King Services Ltd & another (Cause E078 of 2023) [2024] KEELRC 602 (KLR)

Employment and Labour Relations Court
13 March 2024
RSRadido Stephen
749 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Kisumu dismissed an unfair termination claim because the claimant could not prove she was actually an employee.

What this practically means

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Executive summary

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The Claimant sued the Respondents on 4 October 2023 alleging unfair termination of employment and breach of contract, asserting she had been employed since 2016 as a Finance Director. The Respondents denied the existence of any employment relationship, contending that the Claimant and the 2nd Respondent were in a marital relationship out of which children were born, and that monies paid into her account were for the upkeep of the children. In support of her claim, the Claimant produced a letter dated 14 December 2020 purporting to increase her salary from Kshs 100,000/- to Kshs 200,000/- per month, and bank statements showing credits from the Respondents. The Court held that where no formal contract exists, secondary evidence may be used to establish an employment relationship, but found the bank credits inconsistent on a monthly basis and unreflective of the purported salary increase. The Respondents' witness testified the Claimant was not on the payroll of a company with over 2,500 employees and lacked the qualifications for a Finance Director; the Claimant did not disclose her qualifications or tax returns. The Court concluded that the payments were attributable to the Claimant's marital relationship with the 2nd Respondent, and that she failed to prove an employment relationship to the required standard. Accordingly, the Court declared she was not an employee and dismissed the Cause with no order on costs.

Key legal issues

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01

Existence of an employment relationship

Holding

The Claimant did not prove she was an employee; the salary increment letter was uncorroborated and bank credits were inconsistent with a salary

Reasoning

The Claimant relied on a letter dated 14 December 2020 increasing her salary and on bank statements showing credits from the Respondents. The Court found the credits inconsistent on a monthly basis and not reflecting the purported increased salary. No formal contract, tax returns or proof of qualifications were produced, and the Respondents' witness denied she was on the payroll. The payments were attributable to a marital relationship with the 2nd Respondent.

p. 2
02

Whether unfair termination could be determined

Holding

Without proof of an employment relationship, examination of unfair termination was academic

Reasoning

Unfair termination presupposes an employment relationship. Having found none was proved, the Court declined to examine the merits of the unfair termination and breach of contract claims, dismissing the Cause entirely.

p. 2

Legal principles established

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  • Where there is no formal employment contract, the Court may look at secondary evidence to ascertain whether an employment contract existed
  • A party asserting an employment relationship bears the burden of proving it to the required standard

Court orders

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  1. 1.The Court finds and declares that the Claimant was not an employee of the Respondents
  2. 2.The Cause is dismissed with no order on costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a Cause alleging unfair termination of employment and breach of contract

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, "Saleh v Pride King Services Ltd & another (Cause E078 of 2023) [2024] KEELRC 602 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/602/eng@2024-03-13

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