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ELRCDismissedMemorandum of Claim dated 15th February 2023 (number not stated in judgment)· [2024] KEELRC 2051 (KLR)

Korir v Mosonik (Employment and Labour Relations Cause 006 of 2023) [2024] KEELRC 2051 (KLR)

Employment and Labour Relations Court
31 July 2024
DNDavid Nderitu
1,969 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 dismissed a 47-year gratuity claim because the worker could not prove he was ever employed by the person he sued.

What this practically means

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Executive summary

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The claimant, a former farm supervisor, sued the respondent claiming gratuity, payment in lieu of leave, NSSF contributions and medical cover, each computed at 30 days per year for 47 years, contending he worked for the respondent until retiring effective 31st December 2022. He alleged he was initially engaged by the respondent's deceased father in 1977 and was thereafter 'inherited' by the respondent, who allegedly paid his salary until 2022, and that the respondent was an administrator of the deceased's estate. The respondent denied ever employing the claimant, asserting the claimant was employed by the respondent's late father in a tea farm, was relieved of duties and paid all dues in 2000, and that the respondent, born in 1971, was a minor in 1977; the estate, he said, has four administrators and the tea farm employees are paid by a factory. The court framed three issues: proof of an employment relationship between the parties, entitlement to reliefs, and costs. Holding that the burden lay on the claimant, the court found that neither an oral nor written contract of employment with the respondent was proved, and that the claimant failed to prove the respondent was an administrator of the deceased's estate, there being no letters of administration produced. Consequently, the compensation issues did not arise. The claim was dismissed on 31st July 2024 with each party bearing their own costs.

Key legal issues

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01

Whether an employment relationship existed between the claimant and the respondent

Holding

No employment relationship, oral or written, was established between the claimant and the respondent

Reasoning

The evidence showed the claimant was engaged by the respondent's deceased father in about 1977. The claimant had to prove either that the respondent was the sole administrator of the deceased's estate or that an employment relationship existed with the respondent personally. Neither was proved: the claimant admitted having no letters of administration evidence and conceded the salary was paid by the deceased until his death. Burden of proof remained on the claimant throughout.

p. 4
02

Whether the claimant was entitled to the reliefs sought (gratuity, leave pay, NSSF, medical cover)

Holding

The reliefs fell away because no employment relationship with the respondent was established

Reasoning

Since the foundational employment relationship between the claimant and the respondent was not proved, the statutory reliefs claimed under the Employment Act could not be awarded as against the respondent. The court also found the claimant failed to prove the respondent was an administrator of the deceased's estate, so claims could not lie against him on behalf of the estate either.

p. 5

Legal principles established

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  • He who alleges must prove; the burden of proving an employment relationship rests on the claimant and does not shift to the respondent merely by allegation
  • A claimant suing an alleged administrator of a deceased employer's estate must prove the administration by production of letters of administration issued by a competent court

Court orders

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  1. 1.The claimant's cause is dismissed
  2. 2.Each party to meet own costs

Authorities

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Legislation

  • Employment ActSection 2 (definition of employee)
  • Employment ActSection 35(5) (service pay)
  • Employment ActSection 34 (medical cover)

Cases cited (5)

  • Mary Rhobi V Annah Bhamania
    (2014)
  • John Willice Opot V Starehe Boys Centre
    (2013) eKLR
  • Linet Akasa Shikoli V Lilian Otundo
    (2014) eKLR
  • Joab Ashitiba Kashon V Samaritan Medical Services
    (2017) eKLR
  • Everret Aviation Limited V Kenya Revenue Authority
    (2023) eKLR
Jurisdiction invoked
First-instance employment and labour relations cause under the Employment Act (specific constitutional/statutory jurisdictional provision not stated 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, "Korir v Mosonik (Employment and Labour Relations Cause 006 of 2023) [2024] KEELRC 2051 (KLR)", Case Analysis (2024). Memorandum of Claim dated 15th February 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2051/eng@2024-07-31

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