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ELRCDismissedNot stated in judgment

Owiti v C & A Security Services (Cause 2402 of 2016) [2022] KEELRC 4104 (KLR)

Employment and Labour Relations Court
30 September 2022
1,506 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, by a memorandum of claim dated November 21, 2016, sued the respondent alleging he was employed as a security guard on a monthly salary of Kshs 6,000.00 and was forced to resign on or about August 20, 2016 due to non-payment of salary. He claimed Kshs 200,894.20 for underpaid salary, unpaid house allowance, unpaid leave, unpaid rest days and unpaid overtime. The respondent entered appearance but never filed a response; its advocate ceased acting in 2021 and it did not attend the hearing on June 8, 2022, whereupon the claimant's affidavit of service was accepted and the matter proceeded ex parte. The court framed two issues: whether an employment relationship was proved and, if so, whether the claimant was entitled to the reliefs sought. Applying sections 107 and 108 of the Evidence Act and section 47(5) of the Employment Act, the court held the burden lay on the claimant to prove the employment relationship. The contract he exhibited was blank, containing no name or identification particulars, and he produced no resignation letter, payslips, or corroborating evidence, nor did he call a former co-worker. The court found the claimant had failed to draw the employer-employee nexus on a balance of probabilities, and since no employment relationship existed, it declined to assess the reliefs. The claim was dismissed in its entirety with no order as to costs. Judgment was delivered virtually pursuant to COVID-19 directives issued by the Chief Justice.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an employment relationship between the claimant and the respondent has been proved?
  2. 2.If the answer to (a) is in the affirmative, whether the claimant is entitled to the reliefs sought?

Key legal issues

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01

Whether an employment relationship was proved

Holding

The employment relationship was not proved; the contract produced was blank and no other documents linked the claimant to the respondent

Reasoning

The claimant bore the burden under sections 107 and 108 of the Evidence Act and section 47(5) of the Employment Act. The exhibited contract bore no particulars specific to the claimant, and he exhibited no resignation letter or other corroborating documents and called no co-worker. He merely asserted employment, so the nexus to the respondent was not established on a balance of probabilities.

p. 3
02

Whether the claimant was entitled to the reliefs sought

Holding

Not entitled; the foundation for the award was unfounded

Reasoning

Having found no employment relationship, the court held it was not logical to assess the reliefs of Kshs 200,894.20 for underpaid salary, house allowance, leave, rest days and overtime, since such dues accrue only where an employment relationship exists.

p. 3

Legal principles established

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  • The employee bears the burden of proving the fact of termination and, prior to that, the existence of an employment relationship
  • Proving the employment relationship is the backbone of an employee's case and a precondition for awarding reliefs

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act)

Relief refused

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Claim of Kshs 200,894.20 being underpaid salary, unpaid house allowance, unpaid leave, unpaid rest days, and unpaid overtime

The claimant failed to prove on a balance of probabilities the existence of an employment relationship with the respondent

p. 3

Costs

There will be no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In light of the foregoing, I find that the claimant failed to discharge his burden by proving on a balance of probabilities, the existence of an employment relationship between him and the respondent.
p. 3Burden of proving employment relationship
the claimant has failed to draw a nexus between himself and the respondent in terms of an employer-employee relationship.
p. 3Failure of proof
In the end, I cannot help but dismiss the claim in its entirety. There will be no order as to costs.
p. 3Final orders - dismissal and costs

Issues in the judgment

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minor

The case number of the suit is not stated anywhere in the judgment as provided

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, "Owiti v C & A Security Services (Cause 2402 of 2016) [2022] KEELRC 4104 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4104/eng@2022-09-30

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