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ELRCDismissedEmployment and Labour Relations Cause (Nairobi), Statement of Claim dated 9th May 2017· [2025] KEELRC 683 (KLR)

Mekubo v Vivo Energy Kenya Limited (Cause 867 of 2017) [2025] KEELRC 683 (KLR)

Employment and Labour Relations Court
6 March 2025
2,922 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant sued seeking notice pay, house allowance, underpayments, PAYE refunds, payment for public holidays and weekend work, leave, severance pay, 12 months' compensation for wrongful and unfair termination, reimbursement of expenses and a certificate of service, alleging he was employed by the Respondent as a driver from May 2015 and was locked out of his work station on 4th/5th March 2017 after his Union raised grievances about corruption and nepotism at the Respondent's JKIA aviation branch. The Respondent denied ever employing the Claimant, asserting he was an employee of Tropical Focus (K) Limited, a Human Resources outsourcing firm, seconded to the Respondent as a shift driver, and that he left on leave taken through his actual employer. The court framed three issues: existence of an employment relationship, unfair termination, and entitlement to reliefs. On the evidence, the court found uncontroverted contracts of employment between the Claimant and Tropical Focus (K) Limited (2011, 2015, 2016), leave application forms on Tropical Focus letterheads and a warning letter from that company, establishing that control over the Claimant lay with Tropical Focus. The Authorization to Drive Certificate and time sheets were held to show only task allocation and accountability, not employment. Applying the tests for an employment relationship and recognizing the triangular outsourcing model, the court held the Claimant failed to prove an employer-employee relationship with the Respondent. The unfair termination question became academic since Tropical Focus (K) Limited was not a party. The entire claim was dismissed with no orders as to costs.

Key legal issues

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01

Whether an employer-employee relationship existed between the Claimant and the Respondent

Holding

No such relationship existed; the Claimant was an employee of Tropical Focus (K) Limited outsourced to the Respondent

Reasoning

The Claimant produced no employment contract with the Respondent. The Respondent produced uncontroverted contracts of employment (2011, 2015, 2016) between the Claimant and Tropical Focus (K) Limited, leave forms on Tropical Focus letterheads, and a warning letter from Tropical Focus, showing control lay with Tropical Focus. The Authorization to Drive Certificate and time sheets showed only task allocation and accountability, not employment. The outsourcing arrangement was a triangular work engagement.

p. 6
02

Whether the Claimant was unfairly terminated

Holding

The issue was not determined as it became academic

Reasoning

Having found no employment relationship with the Respondent, and Tropical Focus (K) Limited not being a party to the suit, the court held it would be an academic exercise to determine unfair termination, since the alleged termination could only be assessed against the actual employer.

p. 7
03

Whether the Claimant deserved the reliefs sought

Holding

No relief was awarded; the entire claim was dismissed

Reasoning

All reliefs hinged on proof of an employment relationship with the Respondent. That having failed, none of the heads of claim - notice pay, house allowance, underpayments, PAYE refunds, severance, compensation or a certificate of service - could issue against the Respondent.

p. 7

Legal principles established

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  • An employer-employee relationship is established by selection and engagement of the employee, proof of payment of wages, power of dismissal and power to control the employee's conduct
  • Time sheets showing attendance at a client's premises are an accountability instrument and do not of themselves prove an employment relationship with the client
  • Employment relationships can take a triangular/outsourcing model where the owner of the work does not directly employ the worker

Court orders

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  1. 1.Dismissal of the Claimant's claim
  2. 2.No orders as to costs
Jurisdiction invoked
Article 162(2)(a) of the Constitution / Employment and Labour Relations Court Act (Employment and Labour Relations Cause)

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, "Mekubo v Vivo Energy Kenya Limited (Cause 867 of 2017) [2025] KEELRC 683 (KLR)", Case Analysis (2025). Employment and Labour Relations Cause (Nairobi), Statement of Claim dated 9th May 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/683/eng@2025-03-06

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