[2014] KEELRC 1482 (KLR)
The court found that the claimant failed to discharge the burden of proof required to establish an employment relationship with the respondent and the terms of such employment, including the alleged salary and entitlements. In the absence of a written contract, master roll, or other documentary evidence, the court...
Source-derived case information.
- Citation
- [2014] KEELRC 1482 (KLR)
- Parties
- Claimant: Flora Nasimiyu Twale; Respondent: Mahboob Faraj
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 259 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- HS Wasilwa
- Legal Topics
- Domestic Worker Rights, Underpayment of Wages, Employment Contracts, Leave Entitlements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Flora Nasimiyu Twale
Claimant
Mahboob Faraj
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was an employee of the respondent entitled to statutory employment benefits.
- 2 Whether the claimant was underpaid during her period of service.
- 3 Whether the claimant is entitled to payment in lieu of leave.
Ratio Decidendi
The court found that the claimant failed to discharge the burden of proof required to establish an employment relationship with the respondent and the terms of such employment, including the alleged salary and entitlements. In the absence of a written contract, master roll, or other documentary evidence, the court was left with conflicting oral testimonies. The claimant's evidence was insufficient to prove her claims on a balance of probabilities. Consequently, the court dismissed the claim for underpayment and payment in lieu of leave, holding that the claimant had not proved her case as required by law.
Court Disposition
claim dismissed
Orders
- The claimant's case is dismissed.
- Each party will bear its own costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KISUMU
CAUSE NO. 259 OF 2013
(Before Hon. Justice Hellen S. Wasilwa on 27th November, 2014)
FLORA NASIMIYU TWALE ....................................................... CLAIMANT
-VERSUS-
MAHBOOB FARAJ................................................................ RESPONDENT
JUDGMENT
The claimant herein Flora Nasimiyu Twale filed her memo of claim on 17. 9.2013 through the firm of Anassi Momanyi & Co. Advocates.
The claimant claims that she was an employee of the respondent as a househelp between 1999 to December 2012 when she resigned from employment. During the period, she stated that she was earning Kshs 2,000/= per month from 1999 to 2011 December and then Kshs 4,000/= per month from January 2012. It is her position that during the period, she was underpaid to the tune of Kshs 602,844/=. She also stated that she never went for leave during the period and demands payment in lieu of leave totalling Kshs 78,510. She also prays for costs.
In cross-examination she said she worked for respondents for 14 years and always complained of the underpayment. She also stated that she was not given any appointment letter. She called one witness one Jane Wasike who testified that she too was a fellow worker with claimant and left work on 24. 12. 2012.
The respondents on the other hand filed their statement of defence on 30. 9.2013 through the firm of M/s Onyinkwa & Co. Advocates. It is the respondent's contention that the claimant was never their employee as alleged and he is a stranger to claimant's contentions. The respondents also gave evidence and stated that the claimant used to work for him occasionally especially on Monday and Friday but he never employed her.
Given the evidence on record by both parties, I find that the evidence of claimant does not prove what she used to earn. In the absence also of a written contract and even a master roll, what this court is presented with is claimant's word against the respondent. I therefore find that the case of claimant is not proved as expected and I dismiss it accordingly. Each party will meet it's costs.
HELLEN S. WASILWA
JUDGE
27/11/2014
Appearances:-
Momanyi for claimant
Ayieko for respondent
CC. Wamache