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ELRCDismissedNot stated in judgment

Astro Techwell Limited v Kamami (Appeal E008 of 2023) [2024] KEELRC 2822 (KLR)

Employment and Labour Relations Court
15 November 2024
BOByram Ongaya
1,075 words in judgment
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The bottom line

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Kenya's Employment Court confirmed that employers cannot escape employment obligations by claiming a worker actually served their tenant.

What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Nairobi against the judgment of the trial Senior Principal Magistrate, Hon. B. Ojoo, delivered on 25.08.2023. The appellant challenged the trial Court's finding that it was the employer of the respondent, who had claimed he was employed as a night security guard and dog handler from 09.08.2012 to 31.12.2019 at Kshs. 7,500 per month and unfairly summarily dismissed, claiming Kshs. 1,257,018.00 in various heads. The appellant denied any employment relationship, asserting the respondent worked for its tenant, Dalip Engineering Ltd's landlord arrangement with one Mr. Rupinder, and that the appellant had merely exercised distress for rent and reported alleged theft of the tenant's goods. The appellant prayed that the appeal be allowed, the trial judgment set aside and the respondent's suit dismissed with costs. The Court framed the sole issue as whether the parties were in a contract of employment, applied section 2 of the Employment Act, Cap 226, and, revisiting the record, held the trial Court had not misdirected itself: the alleged tenancy was not proved, no third-party proceedings were taken out, and the respondent had worked for the appellant before the alleged tenant arrived. The trial Court's finding of a contract of service on a balance of probability was upheld. The appeal was dismissed with costs to the respondent and the court file was ordered returned to the Machakos registry.

Questions the Court framed

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

  1. 1.Whether the parties were in a contract of employment

Key legal issues

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01

Whether the parties were in a contract of employment

Holding

The Court upheld the trial Court's finding that the parties were in a contract of service; the appellant was the respondent's employer

Reasoning

The Court applied section 2 of the Employment Act, Cap 226, defining a contract of service as an agreement, whether oral or in writing, expressed or implied. It revisited the trial record and found the respondent had started working for the appellant before the alleged tenant came on the premises; the alleged tenancy was not proved, no third-party proceedings were taken out, and the trial Court's factual findings were not misdirected in any material respect.

p. 3

Legal principles established

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  • A contract of service may be oral, expressed or implied, and an employer-employee relationship is determined on a balance of probability

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs in favour of the respondent
  3. 3.Deputy Registrar to return court file to Machakos registry

The bench

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

BO
Byram OngayaPrincipal Judge
majority

Wrote the judgment

On appeal from
Senior Principal Magistrate's Court (Machakos registry)
Not stated; trial judgment delivered 25.08.2023 by Hon. B. Ojoo, Senior Principal Magistrate
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate court in employment matters

Relief refused

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Setting aside the trial Magistrate's judgment and substitution with an order dismissing the respondent's suit

The Court found the trial Court did not misdirect itself and the parties were in a contract of service

p. 3

Costs of the appeal to the appellant

Appeal dismissed with costs to the respondent

p. 3

Costs

The appeal was dismissed with costs in favour of the respondent.

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.

The Court has revisited the record before the trial Court and returns that the trial Court did not misdirect itself in any material respect.
p. 3Appellate review of trial findings
The appellant was the sole employer of the respondent and the findings of the trial Court are upheld that on a balance of probability, the parties were in a contract of service.
p. 3Employer-employee relationship
In conclusion, the appeal is hereby dismissed with costs in favour of the respondent and the Deputy Registrar to return court file to Machakos registry.
p. 3Final orders

Issues in the judgment

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material

Date of trial judgment inconsistent with appeal filing date: appeal dated 18.09.2013 filed against judgment delivered 25.08.2023

minor

Minor typographical errors in judgment (e.g. 'vfact', 'efiective', 'ofi days', 'copurt')

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, "Astro Techwell Limited v Kamami (Appeal E008 of 2023) [2024] KEELRC 2822 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2822/eng@2024-11-15

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