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ELRCDismissedNairobi ELRC Cause No. E376 of 2023

Trenk v Cricket Kenya (Cause E376 of 2023) [2024] KEELRC 2357 (KLR)

Employment and Labour Relations Court
30 September 2024
4,410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a man's claim for USD 176,000 because he could not prove he was actually an employee of the Cricket Association of Kenya.

What this practically means

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Executive summary

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The Claimant, Walter Mukinginyi Trenk, sued the Cricket Association of Kenya alleging he was employed as Deputy Chief Executive Officer at USD 3,600 per month and was owed salary arrears of USD 176,000, seeking a declaration that non-payment was unfair and unlawful, damages for discriminatory violation of rights, costs and interest. The Respondent denied any employment relationship, relying on a Memorandum of Understanding signed on 9th May 2022 between the Claimant and the Association for an intended cooperation with the Barbados Cricket Association, under which a fee of Kshs.400,000 was agreed, and contending the MOU was never ratified by its Board and the intended cooperation never materialised. The court framed three issues: existence of an employment relationship, violation of rights, and entitlement to reliefs. Analysing the MOU, board minutes and emails, the court found the MOU was a stepping stone to possible employment, never ratified, with the Deputy CEO position not existing under the Respondent's Constitution. The Claimant produced no evidence of agreed salary, reporting lines, leave, statutory deductions or workplace. Applying the Section 2 Employment Act definitions and the burden under Section 107 of the Evidence Act, the court held the Claimant failed to prove an employment relationship; consequently the court lacked jurisdiction, no rights violation was proved, and all reliefs were declined. The suit was dismissed with no orders as to costs on 30th September 2024, delivered virtually at Nairobi.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was an employment relationship between the Claimant and the Respondent
  2. 2.Whether the Respondent violated the Claimant's rights
  3. 3.Whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondent

Holding

No employment relationship existed; the parties' relationship was governed solely by the MOU with a fee of Kshs.400,000

Reasoning

The MOU made no reference to employment, salary, reporting lines or work schedule. The Claimant adduced no verifiable evidence of an agreed salary, leave, statutory deductions or place of work, and the board minutes show the MOU was never ratified and the Deputy CEO position did not exist. Section 2 Employment Act definitions show wages/salary as central, and the burden under Section 107 Evidence Act lay on the Claimant.

p. 9
02

Whether the Respondent violated the Claimant's rights by discrimination or unfair labour practice

Holding

No violation proved; allegations unsubstantiated

Reasoning

The Claimant tendered no evidence of what right was violated, when or how he was discriminated against, and did not allege he was treated differently from others in similar circumstances unlawfully.

p. 9
03

Entitlement to the reliefs sought

Holding

All reliefs declined as the foundational employment relationship was not proved

Reasoning

The declaration, the USD 176,000 and damages for discrimination all depended on proof of employment, which failed; each prayer was accordingly declined.

p. 9

Legal principles established

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  • A claimant alleging employment bears the burden of proving the existence of an employment relationship
  • Jurisdiction is a threshold matter determined by the existence of an employment relationship

Court orders

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  1. 1.The Claimant's suit against the Respondent is dismissed with no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction); employment relationship challenged as a jurisdictional fact

Relief refused

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Declaration that the Respondent's failure to pay salary was unfair and unlawful

Claimant failed to prove an employer/employee relationship

p. 9

Payment of USD 176,000

Unsustainable in the absence of an employment relationship

p. 9

Damages for violation of rights by discrimination

Not proved; allegations unsubstantiated

p. 9

Costs

Dismissed with no orders as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot, the Claimant's suit against the Respondent is unsustainable and it is accordingly dismissed with no orders as to costs.
p. 9Final orders - dismissal
Having failed to adduce evidence of the existence of a contract of service with the Respondent other than the MOU, it is the finding of the Court that Claimant has failed to prove that he was an employee of the Respondent at any time between 1st March, 2022 and 11th December, 2022
p. 9Failure to prove employment relationship
A Claimant claiming employment rights must prove the existence of an employment relationship
p. 7Burden of proof in employment claims
It is trite law that jurisdiction is everything as held by Nyarangi JA in Owner of Motor Vessel "Lilian S" V Caltex Oil Kenya Ltd (1989)
p. 9Jurisdiction

Issues in the judgment

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minor

Judgment alternates between two dates for the MOU (9th May 2022 and 1st March 2022) and between two dates for the Claimant's alleged employment end (May 2023 and 11th December 2022)

minor

Judgment refers to the Claimant as female in the discrimination analysis despite the Claimant being Mr. Walter Mukinginyi Trenk

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, "Trenk v Cricket Kenya (Cause E376 of 2023) [2024] KEELRC 2357 (KLR)", Case Analysis (2024). Nairobi ELRC Cause No. E376 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2357/eng@2024-09-30

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