Kenya Building Construction Timber Furniture Industries Employees Union v Asapura Company Limited (Cause 67 of 2019) [2023] KEELRC 2375 (KLR)

d. Certificate of service; and e. Costs. 5. The grievant testified to support his case that he worked for the respondent at difierent work sites and his wages would be paid in cash by a clerk, Frederick Malenya. Another person, Musyoka would also pay him while he was at a difierent site in Shanzu. He was never paid at the respondent’s ofices. The respondent had a director, Nishani who would get contracts from difierent sites and the supervisor would allocate the grievant work. Initially, Fred Masanju had invited him for the carpenters’ job and Nihani remained the overall boss. In the daily wages paid at Ksh 890 there was no NSSF or NHIF. 6. The grievant also testified that the respondent did not issue him an employment letter. His work would be allocated at the work sites and would be paid every Saturday. 7. In reply, the respondent’s case is that there was no employment between the parties as alleged and the claims made are without merit and should be dismissed with costs. 8. The respondent field various work records for its employees, the Muster roll for the years 2016-2018, NHIF remittances records and that the grievant was not one of its employees. 9. In evidence, the respondent called Kazungu Kea Mzungu working as a clerk with the respondent and testified that the grievant was not an employee and does not appear on its records which are produced. The respondent’s practice is to issue all its employees with a written contract and operate from its ofices. Due to the nature of its business, the respondent is able to secure construction sites and allow the contractor to hire its employees. Kazungu testified that he is the supervisor at the respondent’s workshop and the grievant was not among the employees working under him and cannot tell where he was employed because the respondent had secured difierent sites and outsourced to difierent contractors. At the close of the hearing, both parties filed written submissions. 10. The grievant’s evidence is that he was a carpenter and working at difierent sites under difierent supervisors and paid a daily wage weekly but never by any oficer of the respondent. He was supervised by Frederick Masanju and was invited for work by Musyoka and other colleagues. 11. On 11 August 2018 the grievant was called by Masanju and advised not to report back to work the next day. 12. The Muster roll filed by the respondent, the grievant, Frederick Masanju and Musyoka are not among the employees. 13. The NHIF records do not have the same persons listed as respondent’s employees. 14. The claimant got involved in the matter on 13 August 2018 to try and resolve the dispute. Without a recognition agreement, there is no record that the grievant was part of the respondent employees recruited by the claimant as part of its unionisable employees. 15. Due to the nature of the respondent’s business in construction, it is a plausible explanation that they would secure difierent sites and outsource labour and where the grievant was hired by Fred Kisanju and Musyoka. 16. Despite the matter being reported to the labour oficer, a resolution could not be established for lack of prove of employment which matter is crucial and foundational to a party filing a claim before this court which must exist and where there is none, the court is denied jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2375/eng@2023-09-28 2

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17. without the claimant establishing an employment relationship, the grievant’s evidence clear to the extent that his services were secured by difierent people to work at difierent sites, the court finds the response by the respondent that there was no employment correct. 18. Without any employment relationship between the grievant and the respondent being established, the court is without jurisdiction and to assess the claims made will be purely academic. The court must stop at this point. The claim herein is dismissed. No orders on costs. DELIVERED IN OPEN COURT AT MOMBASA THIS 28TH DAY OF SEPTEMBER 2023. M. MBARŨ JUDGE In the presence of: Court Assistant: Japhet Muthaine ……………………………………………… and …………………………………….. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2375/eng@2023-09-28 3

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