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ELRCDismissedNot stated in the judgment (memorandum of appeal dated 18.09.2013)· [2024] KEELRC 2836 (KLR)

Astro Techwell Limited v Masasabi (Appeal 9 of 2023) [2024] KEELRC 2836 (KLR)

Employment and Labour Relations Court
15 November 2024
BOByram Ongaya
1,087 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant appealed to the Employment and Labour Relations Court against the judgment of the Honourable B. Ojoo, Senior Principal Magistrate, delivered on 25.08.2023, in which the trial Court had found that an employment relationship existed between the parties. The respondent, a security guard and grounds person, had claimed she was employed by the appellant from 14.06.2018 until her alleged unfair summary dismissal on 09.09.2019, and claimed various dues totalling Kshs.411,538.40. The appellant denied any contract of service, contending that the respondent was employed by his tenant, Dalip Engineering Ltd, and that he had merely exercised a landlord's distress for rent and reported alleged theft of the tenant's goods to the police. The appellant asked the appellate Court to set aside the trial judgment and dismiss the suit, with costs. The Court framed a single issue: whether the parties were in a contract of employment. It upheld the trial Court's findings, noting that the appellant failed to explain his involvement in the alleged theft long after the tenant had left, or how a departing tenant would leave workers behind, and that no third party proceedings were taken against the alleged tenant. The unresolved labour officer complaint was held not to bar the suit. The appeal was dismissed with costs to the respondent and the file was ordered returned to the Machakos registry.

Key legal issues

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01

Whether an employment relationship existed between the appellant and the respondent

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Costs in favour of the respondent
  3. 3.The Deputy Registrar to return the court file to Machakos registry
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)

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, "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.