https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1580

Charles v Central Organization of Trade Union (Kenya) (Cause E955 of 2022) [2026] KEELRC 1580 (KLR) (25 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1580 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E955 of 2022 ON Makau, J May 25, 2026 Between Mohamed Attika Charles Claimant and Central Organization of Trade Union (Kenya) Respondent Judgment 1.By Memorandum of Claim dated 16th December 2022, the Claimant alleged that he was employed by the Respondent as security officer from 2014 and continuously worked until 15th October 2015 when his employment was unlawfully and unfairly terminated by the Respondent. Therefore he prayed for the following:-a)Kshs. 1,295,000 as particularized in paragraph 9 of the claim.b)Interest at court rate.c)Costs of the suit. 2.The Respondent filed a Memorandum of Response dated 23rd February 2024 denying any continuous employment relationship with the Claimant as alleged in his Memorandum of Claim. It averred that the Claimant was intermittently engaged under contract for services by the Respondents Secretary General to provide security services to complement external, and outsourced and internal security during certain events. Therefore it prayed for the suit to be dismissed with costs. 3.The suit went to full hearing where both sides tendered evidence and thereafter filed written submissions. Evidence 4.The Claimant testified on 25th November 2024 by adopting his written statement dated 16th December 2022 as his evidence in chief. He further produced six documents in the list dated 16th December 2022 as exhibits. 5.On cross examination, he stated that he was employed in 2014 and his job was to provide VIP security. He started the same day with Antony Muganda, Edgar Ochieng and John Paul. They were engaged to provide security to the Respondent’s offices and in functions. He produced several photographs of him and his colleagues during the Respondent’s functions at its offices; at Bungoma during election, at the secretary Generals home and at Uhuru Park during Labour day celebrations. 6.He confirmed that COTU has offices and Human Resource Department. He further admitted that he was no paid by the Respondent’s Accounts but by the PA. Some times when the PA was away, he sent Ndombi to pay him via Mpesa. He contended that he was issued with staff ID card and a letter dated 6th April 2021 to enable him travel to Nakuru when restrictions were in place due to Covid-19 pandemic. He also produced Mpesa statements to prove payment of salary. Finally he stated that he worked for eight years before the termination. 7.The Respondent was represented by the General Secretary’s PA Mr. Adams Sospeter Barasa who testified as RW1 – He adopted his written statement dated 23rd February 2024 as his evidence. He then clarified that the Respondent’s Secretary General has security from police, outsourced security from Securex and internal security to back up the outsourced security. There are also other people including the Claimant hired on need basis for crowd control during events like shop stewards meetings, Labour day celebrations among others. 8.He confirmed that 072xxxxx44 is his privets telephone line and not official. He admitted that he send money to the Claimant, as friend using the said line but clarified that he does not pay salaries on behalf of the Respondent since he is not in the COTU administration. 9.On cross examination, he stated that the Claimant was employed on need basis wherever the Secretary General needed extra security but he was never in continuous employment. He confirmed that the Claimant was first engaged in 2014 for one week only. He never signed any attendance register because he was not an employee. He was hired for a contract of services. 10.He confirmed that the identification card was for COTU and the Claimant’s designation was security. He further confirmed that the letter dated 6th April 2021 certified that the Claimant is a staff of COTU. He stated that he did not know who issued the card to the Claimant. 11.He confirmed that the money he paid Claimant came from COTU allocation to his office for operational costs. He contended that he had no power to hire or fire employees for COTU. He contended that the Claimant was his friend and he was hiring him on need basis and pay him daily. He confirmed that he paid the Claimant Kshs. 30,000 on 2nd September 2021 and then on 1st October 2022 he paid Hussein who was in the same group with the Claimant. He admitted that the photos produced by the Claimant captured him in some of the duties he was doing. 12.In reexamination he reiterated that the Claimant was given the letter and staff card during Covid-19 for purpose of moving from one place to another to do some duties especially, Kisumu where his services were needed during a COTU meeting that time. Submissions 13.It was submitted for the Claimant that he was an employee of the Respondent because he was issued with a staff identification card and a letter dated 6th April 2021 confirming that the same. It was further submitted that RW1 confirmed in evidence that the Claimant was receiving salary. It was argued that the Respondent has failed to disprove the Claimant’s allegations by producing employment records. 14.It was further submitted that the Claimant is entitled to the reliefs sought because his employment was terminated unfairly and without prior notice. He was not given leave for nine years. He was also not paid house allowance for 9 years which was assessed at the rate of 15% of the basic pay. Finally, it was submitted that he is entitled to certificate of service and that the Respondent should be condemned to pay compensation of Kshs. 100,000 for non- compliance. 15.On the other hand, it was submitted for the Respondent that there was no employment relationship between the Claimant and the Respondent. Accordingly, it was submitted that the issue of unfair termination of employment does not arise and the Claimant is not entitled to the reliefs sought. It was argued that the Claimant did not discharge the burden of proving that he was an employee and that he served continuously. Therefore it was reiterated that the Claimant was only hired to do piece work whenever there was need for more security and not on full time basis. Determination 16.Having carefully considered the pleadings, evidence and submissions, the following issues fell for determination:-a)Whether an employment relationship existed between the parties herein.b)Whether the employment relationship was unfairly terminated by the Respondent.c)Whether the Claimant is entitled to the reliefs sought. Employment Relationship 17.The Claimant contended that he was employed by the Respondent as a security officer and supported that allegation with a staff card and letter dated 6th April 2021 given to him by the Respondent. However, RW1 denied the allegation by the Claimant and clarified that the said documents were given to the Claimant to facilitate his movement during the Covid-19 pandemic when movement had been restricted. RW1 further clarified that he used to hire the Claimant on need basis to support the police and COTU’s outsourced security (Securex) to secure the Secretary General during events and functions. He was the one who was paying the Claimant and his colleagues for the services rendered. 18.I have considered the evidence presented and I must discern whether or not the Claimant was an employee on continuous service. Section 2 of the Employment defines employee, employer and contract of service as follows:-“employee means a person employed for wages or salary and including an apprentice and indentured learner.Employer means a person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agents, foreman manager, or factor of such person, public body, firm corporation or company.Contract of service means an agreement, whether oral or writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and intentured learnership but does not include a foreign contract of service to which part XI of this Act applies.” 19.The burden of proof of existence of contract of service was upon the Claimant. He attempted to do so by adducing a staff ID card and a letter dated 6th April 2021. However he did not prove that he worked continuously for the Respondent and that he was paid salary or wages by it. 20.The court finds that the Claimant’s evidence was fully rebutted by the evidence of RW1 when he explained that it was him and not the Respondent who hired the Claimant and paid him from the funds allocated to his office as PA of the Secretary General. He further explained that he hired the Claimant and his colleague on need basis especially when extra security was needed to boost the police and outsourced security from securex company. 21.The court also finds merits in the explanation that the staff ID card and letter dated 6th April 2021 were not meant to create a contract of service between the Claimant and the Respondent but merely to facilitate their movement during the Covid-19 pandemic when movement was restricted. 22.The Claimant did not adduce any further evidence to prove employment relationship except the said staff card and the letter. One wonders why he never called any of his colleagues or other staff of the Respondent or former staff to prove the said employment relationship. He also never produced evidence of continuous and regular payment of salary or wages for nine years he alleges to have been served. 23.The court notes that the Claimant admitted in evidence that he never received his pay from the Respondent directly but from RW1 and when he was away he sent the money through Hussein Ndombi who is one of the security officers attached to the Secretary General. In the circumstances of this case, I am persuaded to hold that the Claimant has not adduced sufficient evidence to prove that he was employed by the Respondent under a contract of service. Reliefs 24.Flowing from the foregoing conclusion I find that the Claimant does not merit the reliefs sought in his Memorandum of Claim. Consequently, I dismiss the entire suit with costs to the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 25TH DAY OF MAY 2026.ONESMUS MAKAUJUDGEAppearances:No appearance for ClaimantNo appearance for Respondent