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ELRCDismissedCause No 1937 of 2016· [2024] KEELRC 1120 (KLR)

Wandimi v Farmpro EA Limited & another (Cause 1937 of 2016) [2024] KEELRC 1120 (KLR)

Employment and Labour Relations Court
30 April 2024
JGJacob Gakeri
2,517 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 claiming unfair dismissal lost because he couldn't prove an employment relationship with irregular payments.

What this practically means

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Executive summary

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The Claimant sued alleging that he was employed in October 2014 as a Salesman and Store Manager at Kshs.12,500/= per month and that his employment was unfairly terminated after he was involved in a road accident in February 2016, incurring medical expenses of Kshs.145,000/= that were not refunded. He sought twelve heads of relief including a declaration of unfair termination, twelve months' compensation, notice pay, unpaid salary, house allowance, service pay, medical expenses, leave, overtime and a certificate of service. The 2nd Respondent denied the employment relationship, describing the Claimant as an independent supplier who received a 10% commission on sales, and sought dismissal with costs. The Respondents did not file submissions. The court framed three issues: employment, unfair termination and reliefs. Analysing the Claimant's documents and MPESA statements, the court found the invoices, delivery notes and receipts showed only a commercial connection, and the MPESA records revealed about 70 payments of varying sums over roughly four and a half months, never matching the alleged salary, with payments also received from other persons. Applying Section 2 of the Employment Act, 2007 and Sections 107 and 109 of the Evidence Act, the court held no express or implied contract of service was proved and that the accident and medical documents lacked authentication and evidential value. The suit was dismissed for want of proof with each party bearing their own costs.

Key legal issues

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01

Existence of an employment relationship

Holding

No employment relationship between the Claimant and either Respondent was proved; the payments received did not amount to a salary and no express or implied contract of service was demonstrated

Reasoning

The court applied the definition of 'employee' and 'contract of service' in Section 2 of the Employment Act, 2007 and the tests in Christine Adot Lopeyio. The Claimant admitted no agreement on terms of employment, produced no NSSF/NHIF records, and his MPESA statements showed irregular payments of varying amounts from multiple persons including the 2nd Respondent and one Godfrey Ndungu, inconsistent with a monthly salary of Kshs.12,500/=. The court found no implied contract of employment.

p. 5
02

Burden and standard of proof and authentication of documents

Holding

The Claimant failed to discharge the burden of proof under Sections 107 and 109 of the Evidence Act; the medical and accident documents lacked authenticity and had no evidential value

Reasoning

The Claimant bore the burden of proving employment, the alleged Thika Road accident and the medical expenses. The accident was unreported to police and the Claimant admitted he was a motorbike pillion passenger. The hospital documents appeared written by the same hand, lacked medical qualifications and designations, and were unauthenticated. The court held such documents lacked evidential value and the evidence fell below the required threshold on a preponderance of probabilities.

p. 6
03

Unfair termination and reliefs

Holding

Having failed to prove employment, the claims of unfair termination and all reliefs collapsed

Reasoning

Unfair termination under Sections 41, 43(1) and 45(2) of the Employment Act presupposes an employment relationship. Since none was established, the termination claim and the twelve heads of relief sought had no foundation and the suit was dismissed with no order as to costs.

p. 6

Legal principles established

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  • A party who asserts an employment relationship bears the burden of proving it on a preponderance of probabilities, per Sections 107 and 109 of the Evidence Act
  • Salary as evidence of employment presupposes regular payments of near-similar amounts by the employer

Court orders

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  1. 1.The Claimant's suit against the Respondents is dismissed for want of proof
  2. 2.Parties shall bear their own costs

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSections 41, 43(1) and 45(2)
  • Evidence ActSection 107
  • Evidence ActSection 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (5)

  • Christine Adot Lopeyio V Wycliffe Mwathi Pere
    (2013) eKLR
  • Daniel Kiplagat Kipkeibut V Smep Deposit Micro Finance Ltd
    (2016) eKLR
  • Lydia Moraa Obara V Tusker Mattresses
    (2021) eKLR
  • Charles Muthusi Mutua V Kathi No Kakoka Services Ltd
    (2022) eKLR
  • Transport Workers Union V African Safari Diani Adventure
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Court established under Article 162(2) of the Constitution; jurisdiction not expressly recited 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, "Wandimi v Farmpro EA Limited & another (Cause 1937 of 2016) [2024] KEELRC 1120 (KLR)", Case Analysis (2024). Cause No 1937 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1120/eng@2024-04-30

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