[2025] KEELRC 1795 (KLR)

Mugutha v Gitau alias Veronica Wairimu Van Helden & another (Cause 1001 of 2018) [2025] KEELRC 1795 (KLR) (19 June 2025) (Judgment)

Neutral citation: [2025] KEELRC 1795 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 1001 of 2018

CN Baari, J

June 19, 2025

Between

Geoffrey Kinyanjui Mugutha

Claimant

and

Veronica Wairimu Gitau alias Veronica Wairimu Van Helden

1st Respondent

Teunis Arie Van Helden

2nd Respondent

Judgment

Introduction 1. Before Court is the Claimant’s Memorandum of Claim dated 20th June, 2018, wherein, the Claimant seeks the following reliefs as against the Respondents:-a.An order that the Respondents pay the Claimant salary due to him of Kenya Shillings Kshs.2,448,000/=b.An Order that the Respondents pay the Claimant his saved and withheld salary of Kshs. 10,000/= from January 1997 up to April 2005 in the sum of Kenyan Shillings 1,000,000/=c.An order that the Respondents pay the Claimant for unpaid holiday from 1997 up to 2018 which is Kenya shillings 125,664/=d.An order that the Respondent pays the Claimant all his unpaid leave days from 1997 up to date, 2018 in the sum of Kenyan shillings 137,088/=e.An order that the Respondent pays the Claimant all his unpaid monthly salaries, leave days and public holidays which have not been calculated in prayer (A, B, C and D) from the date of filing this claim up to the date of the judgment.f.An order that the Claimant calculates all his dues under prayer (e) and files the same in court within 30 days from the date of judgment.g.Cost of the suit and interest at 35% per year from the day of filing suit.h.Any other relief that the Court may deem appropriate to grant.

2. The 1st Respondent filed a Response to the Memorandum of Claim dated 26th November, 2019, wholly denying the Claimant’s averments. Conversely, the Claimant filed a reply to the Respondent’s Statement of Response dated 21st February, 2022.

3. The 2nd Respondent did not defend the case notwithstanding the Court’s directions and Orders of 12th July, 2024.

4. The Claimant’s case was heard on 10th December, 2024 when he testified in support of his case. He adopted his witness statement dated 15th May, 2018 and produced his list and bundle of documents dated 20th June, 2018 and his supplementary list and bundle of documents dated 1st February, 2023 as exhibits in the matter.

5. The Respondents’ case was heard on even date, where the 1st Respondent Ms. Veronica Wairimu Gitau (RW 1) testified and adopted her witness statement dated 29th November, 2019 and produced her list and bundle of documents of even date, and the supplementary list of documents dated 4th April, 2022 in support of the 1st Respondent’s case.

6. The 2nd Respondent was absent during the hearing and did not testify in the case.

7. Submissions were received from the 1st Respondent.

The Claimant’s case 8. It is the Claimant’s case that he was employed by the Respondents who were a couple in the year 1982 in Kakamega as a Caretaker on a starting salary of Kenya shillings Four Hundred (Kshs. 400/=) that was later increased to Kshs. 1,100/= by the year 1989.

9. The Claimant avers that the Respondents moved from Kakamega to Zambia Stage, Ngong at Scheme 305, LR No. 14527 Ngong in 1988 where the Claimant continued to work for them as a caretaker before he was suspended from work in 1989.

10. The Claimant states that in the year 1997, he was recalled back to work by the Respondents where his salary was reviewed to Kshs. 16,320/=. He avers further that it was also agreed that the Respondents would keep the sum of Kshs.10,000/= up until April, 2005 when he would be given the money in lump sum to enable him buy a piece of land for himself, and that the balance of the salary in the amount of Kshs.6,320/= was to be paid every end of the month.

11. The Claimant further avers that the Respondents honoured the agreement until April, 2005 when they stopped paying his salary. It is claimed that despite the Claimant’s requests to be paid his monies and the Respondents’ promises to pay, the Respondents refused to make good his claim.

12. The Claimant states that before the 1st Respondent went out of the Country in 2015, she wrote a letter dated 13th July, 2015 to the Claimant indicating that she had locked the house and left it in the care of the Claimant who would be responsible if anything got lost.

13. It is the Claimant’s case that he has not been paid his salary since the year 2005 to date and the Respondent has refused to pay him his savings of Kshs. 10,000/= per month from 1997 up to 2005 amounting to an aggregate amount of Kshs.3,710,088/= consisting of unpaid salaries, public holidays worked and unpaid leave days.

14. In the Claimant’s reply to the Respondent’s Statement of Response dated 21st February, 2022, the Claimant denies erecting any structures on the Respondents’ property or receiving rent from tenants as claimed by the Respondent. He states that the structures on the subject property were erected by individuals sent by the Respondents in the late 2019.

15. On cross- examination, the Claimant avers that he was employed by the Respondents vide an oral contract, and further that the 1st Respondent is his Aunt. He further confirmed that he subsequently agreed with the Respondents orally that he would be given a loan that would be deducted from his salary.

16. The Claimant prays that his claim be allowed.

The 1st Respondent’s case 17. The 1st Respondent avers that she was married to the 2nd Respondent between the years 1973 and 2005 where she was a housewife and the 2nd Respondent was in gainful employment. She further states that she is currently divorced from the 2nd Respondent since the year 2005.

18. It is the 1st Respondent’s case that the 2nd Respondent was the Claimant’s employer as he paid the Claimant’s salary and wage. She further contends that she has always been a housewife in 1982 onwards with no income and denies employing the Claimant as claimed.

19. The 1st Respondent further states that the Claimant is the current occupant of LR No. 14527 Ngong, the subject property, which was previously the Respondents’ matrimonial home. She further avers that the Claimant has developed the property with stalls and leased it to strangers in exchange for rent, and this has been permitted by the 2nd Respondent.

20. On cross-examination, the 1st Respondent told Court that she divorced the 2nd Respondent in Netherlands in 2005, and admits that she did not mention the subject property as among the matrimonial property. It is her case that she currently has a matrimonial cause in Kajiado Law Courts which includes the subject property where the Claimant currently resides.

21. The 1st Respondent confirmed that she came back from Netherlands in July, 2015 and went to the subject property where the Claimant received her by opening the gate. She further states that the subject property is jointly owned by her and the 2nd Respondent.

22. It is her prayer that the Claimant’s cause be dismissed with costs.

The 1st Respondent’s Submissions 23. The 1st Respondent submits that there was no employer-employee relationship between her and the Claimant and that the Claimant has not established an employer-employee relationship in line with Section 2 of the Employment Act, 2007. She had reliance in the case of Korir vs Mosonik (Employer and Labour relations Cause No. 006 of 2023) [2024] KEELRC 2051 (KLR) (31st July 2024) (Judgment) to submit that the Claimant has failed on its burden to prove the existence of an employment relationship with the 1st Respondent.

24. It is the 1st Respondent’s submission that the Claimant did not produce any documentations to show that there was an existence of an employment contract between him and the 1st Respondent nor any documentations to substantiate the amount of money earned during his employment. To buttress this point the 1st Respondent relied on the holding of the case of Casmir Nyankuru Nyaberi vs Mwakikar Agencies Limited (2016) eKLR.

25. The 1st Respondent submits that it is not clear from the Claimant’s case whether he was under the exclusive control of the 1st Respondent in the performance of his duties and whether he was integrated with the Respondent’s affairs. She had reliance in the case of Christine Adot Lopeyio vs Wycliffe Mwathi Pere [2013] eKLR to support this position.

26. It is the 1st Respondent’s submission that the letter dated 13th July, 2015 annexed as document No. 4 of the Claimant’s list and bundle of documents dated 29th November, 2019 does not constitute sufficient evidence to prove the existence of an employer-employee relationship between the parties herein.

27. The 1st Respondent submits that the Claimant is not entitled to the reliefs sought as there is no employment relationship between himself and the 1st Respondent.

28. The 1st Respondent cited the case of Cecilia Karuru Ngayu vs Barclays Bank of Kenya and Anor(2014) eKLR and Section 27 of the Civil Procedure Act to submit that it is trite law that costs follow the event and therefore, she should be awarded costs of the suit. She further submits that she has been unjustly drawn into litigation incurring significant costs due to the Claimant’s unsubstantiated and vexatious claim.

29. The 1st Respondent urges the Court to dismiss the Claimant’s claim with costs.

Analysis and Determination 30. Upon careful consideration of the pleadings, the evidence adduced, witnesses’ testimonies and the 1st Respondent’s written submissions, the following issues crystallize for determination:-i.Whether there exists an employer-employee relationship between the Claimant and the Respondentsii.Whether the Claimant is entitled to the reliefs sought

Whether there exists an employer-employee relationship between the Claimant and the Respondents 31. The Claimant’s case is that he was recalled to the service of the Respondents in the year 1997, on a monthly salary of Kshs. 16,320/= having left the job earlier in 1989 upon suspension. It is his assertion that he agreed with the Respondents that they would keep the sum of Kshs.10,000/= out of his salary, until April, 2005 when he would be given the money in lump sum to enable him buy a piece of land and that he would be paid the balance of Kshs.6,320 per month.

32. The Claimant further avers that the Respondents honoured the agreement until April, 2005 when they stopped paying his salary. It is his contention that despite requests to be paid his monies and the Respondents’ promises to pay, the Respondents refused to make good.

33. The Claimant maintains that he has not been paid his salary since the year 2005 to date, similar to his savings of Kshs.10,000/= per month from 1997 up to 2005 all amounting to an aggregate sum of Kshs.3,710,088/=, which he asserts consists of unpaid salaries, public holidays worked and unpaid leave days.

34. The 1st Respondent on her part submitted that there was no employer-employee relationship between the Claimant and herself, and further that he did not lead any documentary evidence to show that there existed an employment contract between him and the 1st Respondent nor any documentations to substantiate the amount of money earned during his employment with the 1st Respondent.

35. The Court in Anthony Njuguna v Afri-Cina International Co. Limited & Another (2022) KLR, relying in the case of Ready-Mix Concrete (South East) Ltd v Minister of Pensions and National Insurance, 1968 2 QB set guiding principles on whether a contract of service exists between parties as follows:-“A contract of service exists if these three conditions are fulfilled.(i)The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii)He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.(iii)The other provisions of the contract are consistent with its being a contract of service."

36. Further in Obonyo v Britam Life Assurance Co (K) Ltd (2023) eKLR, the Court citing an appeal filed in Hong Kong stated thus:-“The court indicated that to establish whether a person was an employee, it was necessary to consider the extent of the respondent's control over how the claimant performed his work; whether the claimant had a fixed salary or whether it fluctuated; whether the claimant was an integral part of the organisation or business; whether the respondent had the obligation to provide the claimant with work or he had to look for own business and clients; whether the respondent had an obligation to provide the claimant with an office or equipment; payment of tax and the traditional structure of the trade."

37. The 1st Respondent’s position is that the Claimant is her nephew whom she took in way back in 1980. She told court that her former husband, the 2nd Respondent herein, hired the Claimant as a gardener as she could not get a job for him. She asserts that she had no agreement with him, but was instead an employee of the 2nd Respondent.

38. The 1st Respondent contends that when she visited Kenya from the Netherlands in July, 2015, the Claimant was still in their Ngong house and that it is he who opened the gate for her. She avers that she received a demand letter from him when she went back to the Netherlands.

39. The 1st Respondent contends that she has never discussed payment of salary with the Claimant.

40. From the 1st Respondent’s admission that the Claimant still takes care of their house in Ngong, and her letter of 13th July, 2015 indicating that she had left their house under the care of the Claimant, and that the Claimant will be held responsible for any loss or damage to the property, an employer-employer relationship has on a balance of probability been established.

41. I thus find and hold that indeed the Claimant is an employee of both the 1st and the 2nd Respondents.

Whether the Claimant is entitled to the reliefs sought 42. The Claimant’s claim is for unpaid salary since the year 2005 to date. He further seeks an order for payment of savings amounting to Kshs.3,710,088/=, which he claims the Respondents were to hold for him.

43. The Claimant further seeks an order for payment on account of holidays worked from 1997 up to 2018 of Kenya shillings 125,664/= and payment for unpaid leave days from 1997 up to date, 2018 in the sum of Kenyan shillings 137,088/=.

44. Other than the prove that he still works for the Respondents, the Claimant has not led any evidence to show that the Respondents retained some of his salary as a saving to be given to him on a later day and his claim on this account is devoid of merit and is dismissed.

45. The Claimant admitted on cross-examination that he agreed with the Respondents orally that he would be given a loan that would be deducted from his salary, but did not disclose the amount advanced.

46. The Claimant has proved that he was an employee of the Respondents. He claims salary not paid since April, 2005, which he has not shown that he ever asked for payment of the same in the last 20 years.

47. It is not convincing that the Claimant has continued working for the Respondents without pay for such a long period and without showing even a text message to either of the parties seeking to paid his salaries.

48. I note that the 2nd Respondent did not defend the suit and the evidence against him remains uncontroverted. The 1st Respondent told this Court that though she is now divorced from the 2nd Respondent, they still jointly own the property subject of this proceedings.

49. In light of the foregoing, I proceed to award the Claimant salary for three (3) years payable by both Respondents jointly and severally.

50. The Respondents not having shown that they paid the Claimant’s salaries, goes to confirm that holidays worked and leave entitlement were similarly not paid for, and which are hereby allowed as prayed.

51. In whole, the claim partly succeeds in the following terms:-a.That the Claimant is an employee of the Respondentsb.That the Respondents jointly and severally pay the Claimant 3 years’ salary at Kshs.587,520/-c.An order that the Claimant be paid for holidays worked at Kshs.125,664/=d.An order for payment on account of leave days Kshs. 137,088/=e.The Respondents shall bear the costs of this suit.

52. Judgment accordingly.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2025. C. N. BAARIJUDGEAppearance:N/A for the ClaimantMs. Meruaki present for the 1st RespondentN/A for the 2nd RespondentMs. Esther S – C/A