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ELRCDismissedELRC Appeal from Mombasa CM ELRC No. E033 of 2022

Ondieki v Lapton TAT EA Limited (Appeal E020 of 2024) [2024] KEELRC 2810 (KLR)

Employment and Labour Relations Court
14 November 2024
1,650 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Winning at a hearing where nobody shows up to fight you still means proving your case — this claimant lost for lack of proof.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the magistrate's court delivered on 8 February 2024 in Mombasa CM ELRC No. E033 of 2022, which dismissed the appellant's claim for unfair termination and terminal dues. The appellant claimed he was employed as a mechanic from 5 March 2015 at Ksh.30,000 per month until his termination on 28 June 2021, claiming notice pay, house allowance, leave pay, compensation, overtime, NHIF arrears and service pay. The respondent denied employing him and asserted it was not incorporated in 2015. It filed a response but did not attend the formal proof hearing. The appellant advanced six grounds of appeal, mainly that the magistrate wrongly shifted the burden of proof to him. The court held this was a first appeal entitled to reassess the record, and that even in formal proof proceedings the claimant bears the burden of proving the claim on a balance of probabilities. Because the respondent denied the employment relationship and raised the question of its non-registration in 2015, the establishment of the employment relationship became a jurisdictional question to be determined on the pleadings before the merits, applying the NSSF Board of Trustees and Gcaba decisions. The appellant's only documents, two delivery notes bearing the same serial number (one undated), could not confer an employment relationship. The magistrate's findings were confirmed and the appeal dismissed with no orders on costs.

Questions the Court framed

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

  1. 1.Whether the trial court erred in shifting the burden of proof of the employment relationship to the appellant
  2. 2.Whether the employment relationship between the appellant and the respondent was established
  3. 3.Whether the findings of the learned magistrate that the appellant had not discharged his burden can be faulted

Key legal issues

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01

Whether the appellant proved an employer-employee relationship with the respondent

Holding

The appeal fails; the trial magistrate's finding that the appellant did not discharge the burden of proving employment was proper and is confirmed

Reasoning

The respondent denied the employment relationship and asserted it was not registered in 2015. This raised a jurisdictional question that had to be addressed on the pleadings before the merits. The appellant's only evidence, two delivery notes from Lapton TAT (E.A.) Co. Ltd of the same serial number, one undated, could not confer an employment relationship. The magistrate's findings could not be faulted.

p. 4
02

Whether formal proof was appropriate despite a filed response

Holding

Formal proof proceedings are proper even where a defence was filed but the defendant did not appear; the claimant must still prove the claim to the required standard

Reasoning

Relying on Gitobu Imanyara, the court held that even where a defendant has not denied the claim or did not appear, formal proof is conducted and the trial court must examine the evidence to satisfy itself the claim is proved. If the evidence falls short, the claim must be dismissed. The standard of proof does not change in the absence of rebuttal.

p. 3

Legal principles established

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  • Even where a defendant does not appear or deny the claim, formal proof proceedings are conducted and the claimant must prove the claim on a balance of probabilities
  • The foundation of any claim before the ELRC is establishment of the employment relationship; where it is challenged it is a jurisdictional question to be addressed first
  • Jurisdiction is determined on the pleadings, not the substantive merits

Court orders

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  1. 1.Appeal against the judgment in Mombasa CM ELRC No. E033 of 2022 dismissed
  2. 2.No orders on costs

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Mombasa (ELRC)
Mombasa CM ELRC No. E033 of 2022
Jurisdiction invoked
First appeal under the Employment and Labour Relations Court (Procedure) Rules

Relief refused

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Setting aside of the trial court judgment and judgment in favour of the appellant with costs

The appellant failed to establish the employment relationship, a jurisdictional foundation of the claim

p. 3

Costs

No orders on 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.

The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.
p. 3Standard of proof in formal proof proceedings
Hence, where the employment relationship is challenged, this being a jurisdictional question, the parties must stop all else and address it.
p. 4Employment relationship as a jurisdictional question
Appeal against the judgment in Mombasa CM ELRC No.E033 of 2022 is without merit and is hereby dismissed. No orders on costs.
p. 4Final orders

Issues in the judgment

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minor

The judgment states the response was filed on 1 April 2022, but the grounds of appeal and submissions refer to a memorandum of response dated 30 March 2021

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, "Ondieki v Lapton TAT EA Limited (Appeal E020 of 2024) [2024] KEELRC 2810 (KLR)", Case Analysis (2024). ELRC Appeal from Mombasa CM ELRC No. E033 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2810/eng@2024-11-14

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