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MagistrateDismissed· [2023] KEMC 294 (KLR)

Aku v Nakuru Rahisi Wholesalers & another (Employment and Labour Relations Cause E267 of 2021) [2023] KEMC 294 (KLR)

Employment and Labour Relations Court (subordinate registry, Nakuru)
23 May 2023
2,430 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, Felisiano Sikoyo Aku, sued Nakuru Rahisi Wholesalers Limited and Paul Amunze claiming he was employed in August 2000 as a security guard by the 2nd Respondent and absorbed by the 1st Respondent in 2004 when the 2nd Respondent's business collapsed, until his services were terminated by the 1st Respondent on 31 August 2020 on grounds of the Covid-19 situation. He sought a declaration of unfair termination, twelve months' compensation under section 49(c) of the Employment Act, one month's pay in lieu of notice, August remuneration, overtime dues, public holiday dues, house allowance, underpayment compensation, a certificate of service, interest and costs. The 1st Respondent denied employing him, asserting he worked for Nakuru Kaa Chonjo Superior Services, a contractor engaged to provide security. The court framed three issues: whether the claimant was an employee of the 1st Respondent, whether he was unfairly terminated, and his entitlement to remedies. Applying section 107(1) of the Evidence Act and the tests for a contract of service, the court found invoices, receipts and a deployment letter proved a contract for service between the 1st and 2nd Respondents subsisting until 28 August 2020, contradicting the claim that the 2nd Respondent collapsed in 2004. The claimant's failure to serve or pursue the 2nd Respondent and his denial of knowing him damaged his credibility. Forgery allegations against the 1st Respondent's documents were disregarded for want of specific pleading under Order 2 Rule 4. The suit was dismissed with costs to the 1st Respondent; no order was made against the 2nd Respondent for lack of proof of service.

Key legal issues

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01

Existence of an employment relationship between the claimant and the 1st Respondent

Holding

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

Reasoning

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.

p. 5
02

Whether the claimant was unfairly terminated

Holding

The question did not arise; the 1st Respondent could not dismiss a person who was never its employee

Reasoning

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.

p. 5
03

Allegation of forged 1st Respondent documents

Holding

The forgery allegation was pleaded carelessly and disregarded

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The claimant's suit is dismissed with costs to the 1st Respondent
  2. 2.Copy of judgment to be supplied to the 1st Respondent's counsel upon payment of fees therefor

Authorities

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Legislation

  • Employment Actsection 49(c); section 2
  • Evidence Actsection 107(1)
  • Civil Procedure RulesOrder 2 Rule 4

Cases cited (6)

  • Kenya Hotels & Allied Workers Union v Alfajiri Villas (Magufa Ltd)
    (2014) eKLR
  • Christine Adot Lopeyio v Wyclifie Mwathi Pere
    (2013) eKLR
  • Ndungu Kimanyi v Republic
    (1976-1980) KLR 1444
  • Everret Aviation Limited v The Kenya Revenue Authority
    (2017) eKLR
  • Cassidy v Ministry of Health
    (1951) 2 KB 343
  • Ready Mixed Concrete v Ministry of Pensions
    (1968) 2 QB 497
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 (court sui generis from pleadings)

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, "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.