Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 (Cause 393 of 2012) (Employment and Labour) [2014] KEIC 99 (KLR)

Employment and Labour Relations Court of Kenya

31 July 2014

NMNzioka wa Makau

1,961 words in judgment

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The bottom line

Kenya's Employment Court ruled that a worker paid through a Kenyan company on behalf of a Tanzanian sister company was not the Kenyan company's employee.

What this practically means

Executive summary

The Claimant sued the Respondent, a Kenyan fish processor, claiming he was employed by it on 1st May 2008 and posted to Tanzania to construct a factory for Marmo E Granito Mines Ltd. He alleged he was injured at work, that his work permit and allowances were not renewed, and that he was forced to resign under duress on 8th December 2011. He claimed house, hardship and medical allowances, leave pay, severance pay, maximum compensation and general damages totalling Kshs 12,668,000/-, plus declarations that the Respondent's conduct amounted to modern-day slavery, fines and committal to civil jail. The Respondent denied employing the Claimant, asserting its operations were confined to Kenya and that the Claimant worked for Marmo E Granito Mines Ltd in Tanzania. The Claimant testified that payment vouchers bore the Respondent's name; the Respondent's HR officer explained the payments were made on behalf of the Tanzanian sister company under an inter-company accounting arrangement. The court applied Part XI of the Employment Act on foreign contracts of service, noting the Claimant had no contract attested under Sections 83 and 84. It found the Claimant worked for Marmo E Granito Mines Ltd, that the Respondent's payments were made on that company's behalf, and that the Claimant was not the Respondent's employee. Constructive dismissal and unfair termination issues fell away. The suit was dismissed with each party bearing its own costs.

Key legal issues

Whether the Claimant was an employee of the Respondent

Holding

No; the Claimant worked for Marmo E Granito Mines Ltd in Tanzania and the Respondent's payments were made on behalf of that company

Reasoning

The Claimant had no contract of service. Documentary evidence showed payments were made by the Respondent on account of Marmo E Granito Mines Ltd, a Tanzanian company whose directors were brothers to the Respondent's directors. The Respondent's HR officer confirmed the payments were on instruction from Tanzania and that the Claimant's name did not appear on the Respondent's employee list.

Whether the Claimant was constructively dismissed

Holding

No; he resigned and there was no constructive dismissal

Reasoning

Having found no employment relationship with the Respondent, the court held there was no resignation from the Respondent's employment and therefore no constructive dismissal and no termination attracting Sections 41, 43, 45 and 49 of the Employment Act.

Legal principles established

A foreign contract of service must comply with Part XI of the Employment Act, including execution in the prescribed form and attestation by a labour officer under Sections 83 and 84.
An employee working for a foreign sister company, even where payments are routed through another company, is not thereby an employee of that other company.

Court orders

1.The suit against the Respondent is dismissed as it does not disclose any cause of action against the Respondent
2.Each party to bear their own costs

Authorities

Legislation

Employment Act 2007Sections 41, 43, 45, 49, 83, 84, 85(1), 85(2) (Part XI)
Employment (Foreign Contracts of Service) Rules 1977Not specified

Cases cited (3)

Kenya Airports Authority v Silas Obengele
[2008] eKLR
Southern Highlands Tobacco v Mc Queen
(1960) EA 490
Joseph Sitati Nato v Kenya Ports Authority
[2010] eKLR

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claim for employment reliefs)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 (Cause 393 of 2012)  (Employment and Labour) [2014] KEIC 99 (KLR)", Case Analysis (2014). Cause No 393 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/99/eng@2014-07-31

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