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ELRCDismissedCause No 93 of 2016· [2025] KEELRC 1887 (KLR)

Kebo v Elburgon Stores Ltd (Cause 93 of 2016) [2025] KEELRC 1887 (KLR)

Employment and Labour Relations Court
26 June 2025
OKOcharo Kebira
1,529 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court dismissed a worker's unfair dismissal claim because he could not prove he was actually employed by the respondent.

What this practically means

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Executive summary

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The Claimant sued the Respondent by a Memorandum of Claim dated 26th January 2016, seeking a declaration that his summary dismissal was unlawful and unfair, terminal dues and compensatory damages of KShs 732,674, interest and costs. He testified that the Respondent employed him verbally on 12th March 2011 as a Night Guard, that he worked twelve-hour shifts, seven days a week and on public holidays without compensation, that his salary of KShs 6,000 was below the minimum wage, and that while on leave in 2024 the Respondent's Director instructed him not to return to work. He relied on an M-Pesa statement said to evidence salary payments through the Respondent's accountant. The Respondent denied ever employing him, asserting all its employees had written contracts, that security services had been outsourced, and that its employee records did not bear his name. It contended the demand letter addressed to Elburgon Stores and Crowford General Contractors showed a different employer. The court framed three issues, with the threshold question being whether an employment relationship existed. Applying section 107(1) of the Evidence Act, it held the Claimant bore the burden of proving employment and had failed: the M-Pesa statement was not admitted without a telecommunications witness, and the evidence did not show the accountant was the Respondent's employee. Noting the inconsistencies between the demand letter and the pleadings, the court found the Claimant unsure of his case or attempting to make a lottery of the process, declined to consider the remaining issues, and dismissed the claim with costs.

Key legal issues

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01

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

Holding

The Claimant failed to discharge the burden of proving employment; his case failed at the threshold.

Reasoning

The court held that the claimant bears the primary duty of proving employment. The M-Pesa statement relied on to show salary payments was not admitted, as no witness from the telecommunications company was secured, and in any event the evidence did not link Peter Njubi to the Respondent as accountant. The demand letter was addressed to Elburgon Stores and Crowford General Contractors, suggesting a different employer, and the Respondent's witness denied employing the Claimant. Inconsistency in the Claimant's case was fatal.

p. 4
02

Whether the Respondent had a duty to produce employee records under sections 10(6) and (7) of the Employment Act

Holding

The court did not reach this issue as the claim failed on proof of employment.

Reasoning

The Claimant submitted that sections 10(6) and (7) of the Employment Act placed the duty to produce employee records on the employer, relying on Asakhulu v West Kenya Sugar Company Limited. The Respondent countered that this would improperly shift the burden of proof. The court declined to examine this and the other issues, holding it would be an unwise use of judicial time once the threshold question failed.

p. 4

Legal principles established

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  • In an employment claim where the existence of an employer-employee relationship is disputed, the primary obligation of proving employment rests on the claimant.
  • A party who is inconsistent about the material facts of his case, or who names different employers at different stages, may be taken to be making a lottery of the court process.

Court orders

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  1. 1.The Claimant's case is hereby dismissed with costs.

Authorities

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Legislation

  • Employment Actsections 10(6) and (7)
  • Evidence Actsection 107(1)

Cases cited (2)

  • Asakhulu vs West Kenya Sugar Company Limited
    [2024] KEERLC 705 [KLR]
  • Kenfrieght [EA] Ltd vs. Benson K. Nguti
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (not expressly stated in 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, "Kebo v Elburgon Stores Ltd (Cause 93 of 2016) [2025] KEELRC 1887 (KLR)", Case Analysis (2025). Cause No 93 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1887/eng@2025-06-26

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