[2019] KEELRC 105 (KLR)
The court found that the Claimant failed to prove the existence of an employment relationship with the Respondent. The evidence presented, including the testimony of the alleged subcontractor and supporting documents, established that the Respondent had subcontracted work to a third party, Sammy Mwengi, who in turn...
Source-derived case information.
- Citation
- [2019] KEELRC 105 (KLR)
- Parties
- Claimant: Joel Matuku Mwanzaku; Respondent: Mul Oil Construction Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 781 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- L Ndolo
- Legal Topics
- Employment Relationship, Burden of Proof, Unfair Termination, Subcontracting, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Matuku Mwanzaku
Claimant
Mul Oil Construction Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether there was an employment relationship between the Claimant and the Respondent capable of enforcement by the court.
- 2 Whether the Claimant was unlawfully and unfairly terminated from employment.
Ratio Decidendi
The court found that the Claimant failed to prove the existence of an employment relationship with the Respondent. The evidence presented, including the testimony of the alleged subcontractor and supporting documents, established that the Respondent had subcontracted work to a third party, Sammy Mwengi, who in turn may have engaged the Claimant. The Claimant did not provide independent evidence to demonstrate a direct employment relationship with the Respondent. As the court's jurisdiction is limited to employment relationships, and the Claimant did not discharge the burden of proof, the claim could not be sustained. Consequently, the entire claim was dismissed for lack of an enforceable...
Court Disposition
claim dismissed
Orders
- The Claimant's entire claim is dismissed.
- Cause No 783 of 2017, Cause No 785 of 2017, and Cause No 812 of 2017 are also dismissed as per the pre-trial agreement.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 781 OF 2017
JOEL MATUKU MWANZAKU..............................CLAIMANT
VS
MUL OIL CONSTRUCTION LIMITED..........RESPONDENT
JUDGMENT
Introduction
1. At pre-trial conference, it was agreed that this matter be heard as a test case in which judgment would apply in Cause No 783 of 2017: Wilfred Mwambisi Mbala v Mul Oil Construction Ltd; Cause No 785 of 2017: Charles Wachira Wanjohi v Mul Oil Construction Ltd and Cause No 812 of 2017: Kisangi Kinyili v Mul Oil Construction Ltd.
2. The Claimant’s claim is by way of Memorandum of Claim dated 28th September 2017 and filed in court on 2nd October 2017. The Respondent filed a Response on 6th February 2018.
The Claimant’s Case
3. The Claimant states that he was employed by the Respondent as a Steel Fixer for a period of three (3) years up to 15th June 2017 when his employment was terminated. He was paid Kshs. 5,600 per week.
4. The Claimant pleads that on 15th June 2017, he reported to work as usual but his employment was terminated verbally.
5. The Claimant claims that the termination of his employment was unlawful and unfair. He therefore claims the following:
a. One month’s pay in lieu of notice……………….....Kshs. 5,600
b. Leave pay for 3 years……………………………………….…...62,400
c. 54 rest days…………………………………………………………129,600
d. Compensation for unfair termination……………………96,000
e. Certificate of service
f. Costs plus interest
The Respondent’s Case
6. In its Response dated 5th February 2018 and filed in court on 6th February 2018, the Respondent states that the Claimant was employed by one Sammy Mwengi and not the Respondent.
7. The Respondent further states that it had subcontracted Sammy Mwengi, vide an agreement dated 1st January 2013, to carry out specific works at piece rates payable at the end of the specific work or engagement.
Findings and Determination
8. The first issue for determination in this case is whether there was an employment relationship between the Claimant and the Respondent, capable of enforcement by this Court.
9. In his Memorandum of Claim dated 28th September 2017 and filed in court on 2nd October 2017, the Claimant claims that he worked for the Respondent for 3 years up to 15th June 2017. Significantly, he does not plead the effective date of his employment with the Respondent.
10. Because the Claimant’s entire claim is premised on an employment relationship, it was incumbent upon him to prove its existence. I have said before and I will say it again that not every work relationship is an employment relationship (see John Kamau Mburu v Program for Appropriate Technology in Health & another [2015] eKLR).
11. In support of its case that there was no employment relationship between it and the Claimant, the Respondent called Sammy Mwengi who described himself as a subcontractor. Mwengi testified that he had been subcontracted by the Respondent to undertake several works. He produced a construction contract between himself and the Respondent dated 1st January 2013 plus several payment certificates.
12. I need to point out that the question before me is not whether Sammy Mwengi was the Claimant’s employer as the line of cross examination by the Claimant’s Counsel seems to suggest.
13. This case turns on the question whether there was an employment relationship between the Claimant and the Respondent and the burden of proving this fell squarely on the Claimant. Having failed to call independent evidence to prove this, the only finding to make is that there was no employment relationship between the parties capable of enforcement by this Court, which exercises specialised jurisdiction.
14. As a result, the Claimant’s entire claim fails and is dismissed.
15. Pursuant to the pre-trial agreement that this case would be heard as a test case for Cause No 783 of 2017: Wilfred Mwambisi Mbala v Mul Oil Construction Ltd; Cause No 785 of 2017: Charles Wachira Wanjohi v Mul Oil Construction Ltd and Cause No 812 of 2017: Kisangi Kinyili v Mul Oil Construction Ltd, these cases also stand dismissed.
16. Each party will bear their own costs.
17. Orders accordingly.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 18TH DAY OF DECEMBER 2019
LINNET NDOLO
JUDGE
Appearance:
Mr. Ngonze for the Claimants
Mr. Tolo for the Respondent