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ELRCDismissedAppeal No. E063 of 2023· [2024] KEELRC 1827 (KLR)

Salim v Bhinder Corporation Limited (Appeal E063 of 2023) [2024] KEELRC 1827 (KLR)

Employment and Labour Relations Court
11 July 2024
2,007 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of the Chief Magistrate's Court delivered on 16/6/2023, which dismissed the Appellant's employment claim against the Respondent, a car-selling company. At trial the Appellant claimed notice pay, house allowance, unpaid leave, underpayment below the minimum wage, compensation for unfair termination, service pay and unpaid NHIF, alleging he was employed on 6/4/2018 as a salesman earning Kshs. 8,500 and verbally terminated on 12/10/2021. The Respondent denied employing him, asserting he was a guard posted by Libra Security Services, which guarded its showroom. The trial Court found the claimant had not proved an employment relationship and dismissed the suit with costs. On appeal, the ELRC, presided over by Agnes Kitiku Nzei, J, framed three issues: employment, unfair termination and entitlement to reliefs. The Court held that although oral employment contracts are recognised, the claiming employee bears the primary duty of proving the relationship, which can be discharged by corroborative oral evidence from colleagues or others; the Appellant called no such evidence, produced nothing showing he sold cars, and testified he was then working as a security officer. The Court upheld the trial Court's finding, held the termination and reliefs issues collapsed, and dismissed the appeal with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the Appellant proved an employer/employee relationship with the Respondent

Holding

He did not; the trial Court's finding that no employment contract existed was upheld

Reasoning

Although the Employment Act recognises oral contracts of employment, a claiming employee bears the primary obligation to prove the relationship, corroborated by credible oral or documentary evidence. The Appellant called no corroborative evidence, produced nothing to show he sold cars or worked as a salesman, and contradicted himself by testifying he was then a security officer with Jubilee Security. The duty to produce employment documents as custodian never arose because the relationship was neither demonstrated nor admitted.

p. 5
02

Whether the Appellant's employment was unfairly terminated and whether he was entitled to the reliefs sought

Holding

The issues did not arise for determination as they collapsed with the failure to prove employment

Reasoning

Both unfair termination and the claims for notice pay, house allowance, leave, underpayment, service pay and NHIF contributions presuppose an employment relationship. Having found none, the Court held the second and third issues must collapse; no claim for terminal dues could survive in the absence of an employer/employee relationship.

p. 5

Legal principles established

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  • The primary duty of proving the existence of an employer/employee relationship under an oral contract lies on the claiming employee, who may discharge it by credible corroborative oral evidence
  • Custodianship of employment documents by the employer only arises once the employment relationship is demonstrated or admitted

Court orders

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  1. 1.The appeal fails and is dismissed
  2. 2.Each party will bear its own costs of the appeal

Authorities

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Legislation

  • Employment Actrecognition of oral contracts of employment (as discussed)
  • Legal Notice No. 2 of 2019minimum wage
  • Legal Notice No. 2 of 2018minimum wage (as filed by the Appellant)
On appeal from
Chief Magistrate's Court, Mombasa (Employment Case No. 48 of 2022)
Mombasa CMCC Employment Case No. 48 of 2022
Jurisdiction invoked
First appeal from the Chief Magistrate's Court, exercising de novo appellate jurisdiction over the evidence adduced at trial

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, "Salim v Bhinder Corporation Limited (Appeal E063 of 2023) [2024] KEELRC 1827 (KLR)", Case Analysis (2024). Appeal No. E063 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1827/eng@2024-07-11

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