[2016] KEELRC 1158 (KLR)
The Court found that there was no employment relationship between the Claimant and the Respondent, as the Claimant himself stated he was employed by the Respondent's Director, not the Respondent company. The absence of an employment relationship meant that the Court could not enforce the claim against the...
Source-derived case information.
- Citation
- [2016] KEELRC 1158 (KLR)
- Parties
- Claimant: Francis Aseyo Buluku; Respondent: Protectors Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 33 of 2015
- Procedural Posture
- Employment Cause / Final Award
- Outcome
- Claim dismissed for want of employment relationship between the parties.
- Judges
- L Ndolo
- Legal Topics
- Unlawful Termination, Employment Relationship, Remedies for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Aseyo Buluku
Claimant
Protectors Limited
Respondent
Procedural Posture
Employment Cause / Final Award
Legal Issues
- 1 Whether the Respondent is properly joined in these proceedings.
- 2 Whether the Claimant resigned or was unlawfully terminated.
- 3 Whether the Claimant is entitled to the remedies sought.
Ratio Decidendi
The Court found that there was no employment relationship between the Claimant and the Respondent, as the Claimant himself stated he was employed by the Respondent's Director, not the Respondent company. The absence of an employment relationship meant that the Court could not enforce the claim against the Respondent. Consequently, the entire claim failed for lack of proper joinder of parties and was dismissed.
Court Disposition
Claim dismissed for want of employment relationship between the parties.
Orders
- The Claimant's entire claim is dismissed.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 33 OF 2015
FRANCIS ASEYO BULUKU............................................................CLAIMANT
VS
PROTECTORS LIMITED............................................................RESPONDENT
AWARD
Introduction
1. The Claimant's claim brought by Statement of Claim dated 14th January 2014 and filed in Court on even date seeks compensation for unlawful dismissal and payment of accrued dues. The Respondent filed a Reply on 20th November 2015. The Claimant gave sworn evidence but the Respondent chose not call any witnesses.
The Claimant's Case
2. The Claimant states that he was employed as a house boy by the Respondent's Director Manjit Singh effective June 1994. He worked as such until 1st August 2014 when he was dismissed. At the time of dismissal, the Claimant earned a monthly salary of Kshs. 9,880.
3. The Claimant claims that he was underpaid and that the Respondent did not make regular National Social Security Fund (NSSF) remittances on his account. He claims the following:
A declaration that his dismissal was unlawful
Underpayment for 3 years
12 months' salary in compensation...................................Kshs. 134,988
1 month's salary in lieu of notice...............................................11,249
Salary for August 2014 (leave)..................................................11,249
Service pay for 14 years (11,249/30x15x14)................................78,734
Costs plus interest
The Respondent's Case
4. In its Reply to Claim filed on 20th November 2015, the Respondent states that it is wrongly joined in these proceedings. The Respondent adds that the Claimant has perjured himself in his verifying affidavit and as such the claim cannot lie.
5. The Respondent further states that the Claimant resigned on his own volition by letter dated 1st August 20114. He then requested to proceed on terminal leave and did not return. He is therefore deemed to have forfeited his notice pay.
Findings and Determination
6. The following are the issues for determination by the Court:
a) Whether the Respondent is properly joined in these proceedings;
Whether the Claimant resigned or was unlawfully terminated;
Whether the Claimant is entitled to the remedies sought
The Respondent's Joiner
7. In its Reply to Claim, the Respondent states that it is wrongly joined in these proceedings. On his part, the Claimant states that he was employed by the Respondent's Director, Manjit Singh. The Court was therefore unable to understand why the Claimant chose to sue a party with whom he had no employment relationship.
8. One of the beacons of the special jurisdiction exercised by this Court is the existence of an employment relationship capable of enforcement. From the evidence on record, there was no employment relationship between the Claimant and the Respondent and an employment claim does therefore lie. For this reason the Claimant's entire claim fails and is dismissed.
9. Each party will bear their own costs.
10. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 27TH DAY OF MAY 2016
LINNET NDOLO
JUDGE
Appearance:
Mr. Makori for the Claimant
Mr. Milwa for the Respondent