Astro Techwell Limited v Masasabi (Appeal 9 of 2023) [2024] KEELRC 2836 (KLR)
The bottom line
#Kenya's Employment Court confirmed a landlord was a worker's true employer and ordered him to pay costs after his appeal failed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the parties were in a contract of employment
Key legal issues
#Whether an employment relationship existed between the appellant and the respondent
The trial Court's finding that the parties were in a contract of service was upheld; the appellant was the sole employer of the respondent.
The trial Court preferred the respondent's evidence and that of her witness as more probable, because the appellant failed to explain how he came to be involved in alleged theft of the tenant's goods long after the tenant had left, and how the tenant could have left workers behind after the tenancy lapsed. The appellant did not take out third party proceedings against the alleged tenant, and the unresolved labour officer complaint did not bar the suit. On a balance of probabilities the employment relationship was correctly found.
Legal principles established
#- An employment relationship may be found to exist on a balance of probabilities even where the alleged employer claims the worker was employed by a third party tenant, particularly where no third party proceedings are taken out to bring the alleged employer into the proceedings.
- A report to the labour officer that is not resolved does not operate as a bar to a suit in the Employment and Labour Relations Court, particularly where the party invoking exhaustion received the labour officer's summons and took no steps.
Court orders
#- 1.The appeal is dismissed
- 2.Costs in favour of the respondent
- 3.The Deputy Registrar to return the court file to Machakos registry
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court (Machakos registry)
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate Court in employment matters (not expressly cited in the judgment)
Relief refused
#Prayer that the appeal be allowed and the trial Court's judgment be set aside and substituted with an order dismissing the respondent's suit
The Court found the trial Court did not misdirect itself and correctly found an employment relationship existed on a balance of probabilities
Costs of the appeal to the appellant
Costs were instead awarded to the respondent
Costs
The appeal was dismissed with costs in favour of the respondent.
Quotable passages
#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 Court considers that such inaction and the failure of the dispute to be resolved by the labour oficer did not operate as a bar to the claimant’s suit.
As urged for the respondent, on a balance of probabilities, the trial Court correctly found that the employment relationship existed between the parties.
the appeal is hereby dismissed with costs in favour of the respondent and the Deputy Registrar to return court file to Machakos registry.
Issues in the judgment
#Internal date contradiction: the memorandum of appeal is dated 18.09.2013 yet the judgment appealed against was delivered on 25.08.2023, an impossible chronology.
The appellant's tenant is referred to inconsistently as 'Dalip Engineering Ltd' and 'Dulip Engineering' within the same memorandum of appeal.
The respondent's gender is stated inconsistently in the judgment (both 'him' and 'her').
The case name and number of the appeal are not stated in the judgment; the parties are referred to only as 'Appellant' and 'Respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Astro Techwell Limited v Masasabi (Appeal 9 of 2023) [2024] KEELRC 2836 (KLR)", Case Analysis (2024). Not stated in the judgment (memorandum of appeal dated 18.09.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2836/eng@2024-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.