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ELRCPartially AllowedMalindi Chief Magistrate's Court ELR Case No. 34 of 2021 (Appeal)· [2024] KEELRC 1892 (KLR)

Chauvel v Hazizi (Appeal E012 of 2023) [2024] KEELRC 1892 (KLR)

Employment and Labour Relations Court
18 July 2024
ANAGNES KITIKU NZEI
2,563 words in judgment
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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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The Employment and Labour Relations Court at Mombasa, through Agnes Kitiku Nzei, J., allowed a first appeal against a judgment of the Malindi Chief Magistrate's Court in ELR Case No. 34 of 2021, in which Karisa Omar Hazizi had successfully sued Nina Chauvel for unfair termination, service pay, notice pay, unremitted NSSF deductions and other reliefs. The Appellant denied ever having employed the Respondent, asserting he was employed by one Murthadaw Athman Isaa and later by One of Us Lamu Limited, of which she was sole director/shareholder. On a first appeal, the court re-evaluated the evidence and framed three issues: whether the Respondent was the Appellant's employee, whether the termination was unfair, and whether the reliefs were deserved. Relying on the company search showing the Appellant as sole director of One of Us Lamu Limited, NSSF statements naming the company as employer from 2018, the show cause and dismissal letters on the company's letterhead signed by the Appellant as Director, and the October 2019 payslip issued by the company, the court held there was no evidence that the Appellant personally employed the Respondent. Applying the separate legal personality doctrine from Victor Mabachi and Salomon, the court held that Mpesa payments made by the Appellant did not make her the employer, as companies transact through their directors. The Respondent had not joined the company despite the defence raising it. The trial judgment was set aside and the Respondent's suit dismissed, with each party bearing its own costs of the appeal and the proceedings below.

Key legal issues

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01

Whether the Respondent was an employee of the Appellant

Holding

No. Documentary evidence showed One of Us Lamu Limited as the employer; the Appellant was merely its sole director/shareholder.

Reasoning

The NSSF statements from 2018 showed the company as employer; the show cause and dismissal letters were on the company's letterhead signed by the Appellant as Director; the October 2019 payslip was issued by the company. Mpesa payments by the Appellant did not alter this, as a company transacts through its directors. The company was never joined despite the defence raising it.

p. 5
02

Whether termination was unfair and whether reliefs were deserved

Holding

Not determined; with no employer/employee relationship between the Appellant and Respondent, the remaining issues fell away.

Reasoning

Having found the Respondent was not shown to be the Appellant's employee on a balance of probability, the court held the other two issues could not be considered, and the appeal succeeded with the trial judgment set aside and the suit dismissed.

p. 6

Legal principles established

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  • The claiming employee bears a primary duty to prove the existence of the employment relationship; where the alleged employer denies employment and the employee fails to prove it, the suit collapses.
  • A limited liability company is a body corporate with a separate legal identity from its directors; payments made via a director's mobile money do not, without more, establish that the director was the employer.
  • On a first appeal, the appellate court must re-evaluate the whole evidence and reach its own independent conclusion.

Court orders

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  1. 1.The trial Court's decree/judgment is set aside
  2. 2.Substituted with an order dismissing the Respondent's suit in Malindi Chief Magistrate's Court ELR Case No. 34 of 2021 (Karisa Omar Hazizi -vs- Nina Chauvel)
  3. 3.Each party shall bear its own costs of both the appeal and of proceedings in the Court below

Authorities

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Legislation

  • Civil Procedure ActSection 15

Cases cited (5)

  • Mursal & Another -vs- Manesa
    [2022] eKLR
  • Selle & Another -vs- Associated Motor Boat Co. Ltd & Another
    [1968] E.A. 123
  • Peters -vs- Sunday Post Ltd
    [1958] E.A. page 424
  • Victor Mabachi & Another -vs- Nurturn Bates Ltd
    Civil Appeal No. 247 of 2005 [2013] eKLR
  • Salomon -vs- Salomon & Co.
    [1897] AC 22
On appeal from
Malindi Chief Magistrate's Court
ELR Case No. 34 of 2021
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court employment and labour relations matter

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, "Chauvel v Hazizi (Appeal E012 of 2023) [2024] KEELRC 1892 (KLR)", Case Analysis (2024). Malindi Chief Magistrate's Court ELR Case No. 34 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1892/eng@2024-07-18

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