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ELRCDismissed· [2025] KEELRC 2367 (KLR)

Adulo v Wassuna (Cause 1140 of 2015) [2025] KEELRC 2367 (KLR)

Employment and Labour Relations Court
31 July 2025
OKOcharo Kebira
1,196 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee suing for KShs 2.4 million lost because his payslips showed a different employer and his claim was filed over three years late.

What this practically means

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Executive summary

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The Claimant, by a Memorandum of Claim dated 13th August 2015, sued the Respondent for KShs. 2,397,440, damages for wrongful dismissal, costs and interest, contending that he had worked for the Respondent for about eight years as a gardener, dog handler and guard after leaving Radar Security in 2004, and that the Respondent terminated his services on 1st May 2012 without notice or justifiable cause because he had requested to work at night, and withheld his April 2012 salary. The Respondent denied ever employing the Claimant, asserting that he had outsourced security services to Radar Security Limited, an independent contractor, and that the Claimant's payslips identified that company as his employer. The court identified two dispositive grounds. First, under section 47(5) of the Employment Act, the employee bears the initial burden of proving employment and unlawful termination on a prima facie basis before the burden shifts to the employer under sections 41, 43 and 45. The court found that the Claimant's evidence, including his payslips, presented him as an employee of Radar Security Limited, not of the Respondent, so he failed to discharge that burden. Second, section 89 of the Employment Act bars claims not filed within three years; the Claimant admitted in cross-examination that his termination occurred on 1st May 2012 and the claim was filed on 17th August 2015, outside the limitation period. The court dismissed the claim with costs. The court applied the authority of Pius Isindu Machafu v Lavington Security [2017] eKLR on the burden of proof.

Key legal issues

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01

Existence of an employer-employee relationship

Holding

The Claimant failed to establish that he was the Respondent's employee; the evidence pointed to Radar Security Limited as his employer

Reasoning

The court considered the pleadings, witness statements and cross-examination. The Claimant's own payslips named Radar Security Limited as employer, he had no document showing he left that company, and the Respondent had outsourced security services to that firm as an independent contractor. The Claimant therefore failed to discharge the burden under section 47(5) of the Employment Act.

p. 3
02

Limitation of actions

Holding

The claim, filed on 17th August 2015 in respect of a termination on 1st May 2012, was filed outside the three-year limit and had to be dismissed

Reasoning

Section 89 of the Employment Act bars civil actions arising out of the Act or a contract of service not commenced within three years of the act complained of. The Claimant himself admitted in cross-examination that the claim was filed outside the three-year limit, leaving the court no alternative but to dismiss the claim on this ground as well.

p. 3

Legal principles established

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  • In an unfair termination or wrongful dismissal dispute, the employee bears the initial burden of proving employment and the termination, on a prima facie standard, before the evidential burden shifts to the employer
  • No civil action arising out of the Employment Act or a contract of service may be instituted more than three years after the act, neglect or default complained of

Court orders

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  1. 1.The Claimant's claim is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 89 (formerly section 90)
  • Limitation of Actions Actsection 4(1)

Cases cited (1)

  • Pius Isindu Machafu v Lavington Security
    [2017] eKLR
Jurisdiction invoked
First-instance employment claim 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, "Adulo v Wassuna (Cause 1140 of 2015) [2025] KEELRC 2367 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2367/eng@2025-07-31

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