Aku v Nakuru Rahisi Wholesalers & another (Employment and Labour Relations Cause E267 of 2021) [2023] KEMC 294 (KLR)
The bottom line
#A Kenyan court dismissed a security guard's unfair termination claim because he could not prove he was actually employed by the company he sued.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship between the claimant and the 1st Respondent
The claimant was an employee of the 2nd Respondent, deployed to the 1st Respondent under a contract for service; no employment relationship with the 1st Respondent was established
The claimant alleged he was absorbed by the 1st Respondent in 2004 when the 2nd Respondent's business collapsed, but invoices, receipts and a deployment letter showed the 1st Respondent contracted Nakuru Chonjo Superior Services and paid the contractor up to 28 August 2020, proving the 2nd Respondent's business did not collapse in 2004. The claimant never served or pursued the 2nd Respondent, and his denial of knowing him undermined his credibility. No document evidenced direct employment.
Whether the claimant was unfairly terminated
The question did not arise; the 1st Respondent could not dismiss a person who was never its employee
Having found the claimant was not an employee of the 1st Respondent, the court held the remedies under the Employment Act were unavailable against it. All subsidiary claims - notice pay, overtime, public holiday dues, house allowance and underpayments - fell with the first issue.
Allegation of forged 1st Respondent documents
The forgery allegation was pleaded carelessly and disregarded
The claimant alleged in cross-examination and in submissions that the 1st Respondent's documents were forged, but the allegation was not specifically pleaded as required by Order 2 Rule 4 of the Civil Procedure Rules and was dismissed as careless.
Legal principles established
#- Whoever alleges must prove; it is the claimant's duty to demonstrate the employment relationship relied upon
- A witness of doubtful integrity makes it unsafe to accept his evidence
Court orders
#- 1.The claimant's suit is dismissed with costs to the 1st Respondent
- 2.Copy of judgment to be supplied to the 1st Respondent's counsel upon payment of fees therefor
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 (court sui generis from pleadings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aku v Nakuru Rahisi Wholesalers & another (Employment and Labour Relations Cause E267 of 2021) [2023] KEMC 294 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/294/eng@2023-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.