[2018] KEELRC 960 (KLR)
The court found that the claimant failed to provide sufficient documentary evidence to establish the existence of an employment relationship with the respondents. The only documents submitted were demand letters and a letter from the City Council of Nairobi, none of which proved that the claimant was employed by the...
Source-derived case information.
- Citation
- [2018] KEELRC 960 (KLR)
- Parties
- Claimant: Monica Kanini Mutua; Respondent: Al-Arafat Shopping Centre; Respondent: M/D Mire Guhad
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1700 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- DO Ogal
- Legal Topics
- Unfair Termination, Proof of Employment Relationship, Remedies for Unfair Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Kanini Mutua
Claimant
Al-Arafat Shopping Centre
Respondent
M/D Mire Guhad
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant established the existence of an employment relationship with the respondents.
- 2 Whether the claimant was unfairly terminated from employment.
- 3 Whether the claimant is entitled to the remedies sought.
Ratio Decidendi
The court found that the claimant failed to provide sufficient documentary evidence to establish the existence of an employment relationship with the respondents. The only documents submitted were demand letters and a letter from the City Council of Nairobi, none of which proved that the claimant was employed by the 1st respondent. As the existence of an employment relationship is fundamental to a claim for unfair termination, the absence of such proof was fatal to the claimant's case. The court relied on precedent, specifically the case of Janet Kwamboka and Another, to hold that failure to prove employment relationship warrants dismissal of the claim. Consequently, the claim was...
Court Disposition
claim dismissed
Orders
- The claim is dismissed for want of proof of existence of an employment relationship between the claimant and respondents.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
Cause No. 1700 Of 2014
(Before Hon. Lady Justice Maureen Onyango)
MONICA KANINI MUTUA ........................................... CLAIMANT
VERSUS
AL-ARAFAT SHOPPING CENTRE ................... 1ST RESPONDENT
M/D MIRE GUHAD ............................................ 2ND RESPONDENT
JUDGMENT
By a memorandum of claim dated 3rd March 2014 and filed on 30th September 2014, the claimant avers that she was unfairly terminated by the respondents. She prays for the following remedies –
1. Under payment Kshs.(7, 586 - 4, 500) x 13 years Kshs.40,118
2. Payment in lieu of notice Kshs.7,586
3. Public Holidays 2 x 364. 95 daily rate x 13 years x 10 Kshs.94,887
4. Rest days 4 days p.m. x 13 years x 364. 95 Kshs.18,977. 40
5. Accrued leave 21 days x 13 years x 364. 95 Kshs.99,631. 35
6. Service pay -15 days x 13 years x 364. 95 Kshs.71,165. 25
7. Salary for October 2013 Kshs.7,586
8. 12 Months Compensation for loss of employment
12 months x 7,586 Kshs.91,032. 00
Total Kshs.430,983. 00
9. An order compelling the Respondents to reinstate the Claimant to his employment; or
10. An order compelling the Respondent to pay the Claimant her terminal dues as tabulated in paragraph 21 above.
11. Costs of this suit.
The respondents did not file appearance or response to the claim. The respondents further failed to attend court for the hearing of the case although there is an affidavit of service indicating that the respondents were served with hearing notice.
On the hearing date, the claimant testified that she was employed by the 1st respondent on 5th February 2000, as a Cleaner. She worked until 2013. Her starting salary was Shs.2,500 per month, which increased gradually to Kshs.4,500. That there was a time she fell sick and did not report for work from Monday to Wednesday. She reported to work on Thursday while still unwell. Her Supervisor asked her to carry a bucket of water and sprinkle to reduce dust but she was unable to do due to her sickness. After that the Manager called her from where she was resting and told her to take her bag and leave. She was not given notice.
The claimant testified that for the entire period she worked she did not go on leave. She worked from 5. 30 am to 4 pm daily without any off day. Whenever she had to be away, she got someone to do her work on her behalf. She was underpaid. She was not paid for days worked. She was not issued with a certificate of service.
The claimant prayed for remedies as set out in her memorandum of claim.
In the submissions filed on behalf of the claimant, she reiterated the facts as set out in her claim and her testimony. She relied on the case of JANET KWAMBOKA AND JUDITH OGENDO -V- FLOMANA BEST SOLUTION SERVICES (KISUMU ELRC NO. 302 OF 2013)
Determination
I have considered the claim, the testimony of the claimant and her written submissions.
In an undefended claim, it is trite that the claimant establishes all the facts of the claim. The claimant must establish the existence of an employment relationship with the respondent as a preliminary issue before establishing the alleged unfair termination of the employment.
In the present case the only documents submitted by the claimant are demand letters from Kenya Scientific, Research International, Technical and Institutions Workers Union (KSRITA IWU) and from counsel for the claimant. She also submitted a document with the logo of CITY COUNCIL OF NAIROBI under the title “TO WHOM IT MAY CONCERN.” The said documents do not establish any employment relationship between the claimant and the 1st respondent, which is fundamental in a claim of unfair termination of employment.
As stated in the case of JANET KWAMBOKA AND ANOTHER cited by the claimant where the 2nd respondent’s case was dismissed for want of proof of existence of an employment relationship, the same fate must befall the claimant herein for the same reasons.
I accordingly dismiss the claim for want of proof of existence of an employment relationship between the claimant and respondents.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 5TH DAY OF OCTOBER 2018
MAUREEN ONYANGO
JUDGE