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ELRCDismissedCause No 64 of 2017· [2024] KEELRC 2236 (KLR)

Tonui v Agricultural Development Corporation (Cause 64 of 2017) [2024] KEELRC 2236 (KLR)

Employment and Labour Relations Court
18 September 2024
DNDAVID NDERITU
3,088 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed a guard's employment claim because he produced no evidence proving he was ever actually hired.

What this practically means

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Executive summary

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The claimant sued the respondent seeking a declaration that he was a regular employee, one month's salary in lieu of notice, salary underpayment, pro-rata leave, overtime, public holiday and rest day pay, pro-rated gratuity, compensation of twelve months' gross salary for unfair termination under Section 49(1)(c) of the Employment Act, a certificate of service, costs and interest. He alleged he was engaged as a night watchman in August 2016 at Kshs228 per day and summarily dismissed on 10th December, 2016 without reason or procedure under Section 41(2) of the Act. The respondent denied ever employing the claimant in any capacity and produced its muster roll, which also served as the payroll for casual employees, showing no record of the claimant. The court framed four issues: employment, its nature if proved, entitlement to reliefs, and costs. Relying on Section 107 of the Evidence Act, the court held the claimant bore the legal and evidential burden of proving employment and unfair termination. The claimant produced no contract, letter of offer, or any document of engagement, and his name (and that of his witness) was absent from the muster roll. The court found the claimant failed to prove employment under Section 47(5) of the Act, and consequently could not invoke Section 43 to demand justification for dismissal. All reliefs fell away. The cause was dismissed with no order as to costs on 18th September, 2024.

Key legal issues

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01

Whether the claimant proved employment with the respondent

Holding

The claimant failed to prove employment; he produced no documents of engagement and his name was absent from the respondent's muster roll/payroll.

Reasoning

The claimant alleged employment as a night guard but produced no contract, letter of offer, or any document. The respondent produced the muster roll for the material period, which also served as the payroll for casuals, and the claimant's name did not feature in it. Section 107 of the Evidence Act places the burden of proof on the party alleging. Having failed to prove employment, the claimant could not invoke Section 43 to demand reasons for dismissal.

p. 6
02

Whether the claimant was entitled to reliefs including unfair termination compensation

Holding

No relief was awardable because the foundational fact of employment was not proved.

Reasoning

Having failed to prove employment of whatever form, the claimant could not allege unfair or unlawful termination so as to require the respondent to justify dismissal under Section 43 of the Employment Act. All heads of claim - notice pay, underpayment, leave, overtime, public holidays, rest days, gratuity, compensation under Section 49(1)(c) and certificate of service - fell away with the failure to prove employment.

p. 6

Legal principles established

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  • The party alleging employment bears the legal and evidential burden of proving it; an employer's statutory records (muster roll) not containing the claimant's name will defeat an uncorroborated claim.

Court orders

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  1. 1.The claimant's cause is dismissed with no order as to costs

Authorities

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Legislation

  • Employment ActSection 49(1)(c)
  • Employment ActSection 41(2)
  • Employment ActSections 41, 43, 45
  • Employment ActSection 10(7)
  • Employment ActSection 7
  • Employment ActSection 8
  • Employment ActSection 47(5)
  • Evidence ActSection 107
  • Evidence ActSection 69
  • Constitution of KenyaNot specified (fair and transparent recruitment)

Cases cited (7)

  • Martin Ireri Ndwiga V Olerai Management Company
    [2017] eKLR
  • Lawi Wasike V Mattan Contractors Limited
    [2016] eKLR
  • Henry Abuga Bosire Ongwae V Ming Tribe International Group Ltd
    [2019] eKLR
  • Kenfreight (E.A) V Benson K. Nguti
    [2019] eKLR
  • Martin Juma Kundu V Kemu Salt Packers Production Limited
    [2016] eKLR
  • Philip Omukule V Trapoz Contractors Ltd
    (2016) eKLR
  • Casmir Nyankuru Nyaberi V Mwakikar Agencies Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment causes under the Employment Act

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, "Tonui v Agricultural Development Corporation (Cause 64 of 2017) [2024] KEELRC 2236 (KLR)", Case Analysis (2024). Cause No 64 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2236/eng@2024-09-18

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