[2018] KEELRC 387 (KLR)
The court found that the claimants failed to provide evidence beyond their pleadings to establish the existence of an employment relationship between the deceased and the respondent. In the absence of such evidence, and with the claim being undefended, the court held that the claimants did not discharge the burden...
Source-derived case information.
- Citation
- [2018] KEELRC 387 (KLR)
- Parties
- Applicant: Rosemary A. Imbayi and Humphrey Busena (Legal Representatives of the Estate of Jacob Auta Busena); Respondent: Century Drycleaners Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 916 of 2012
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- claim dismissed
- Judges
- L Ndolo, DO Ogal
- Legal Topics
- Unfair Termination, Employment Relationship, Overtime Compensation, Underpayment of Wages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary A. Imbayi and Humphrey Busena (Legal Representatives of the Estate of Jacob Auta Busena)
Applicant
Century Drycleaners Limited
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether there existed an employment relationship between the deceased and the respondent capable of enforcement by the court.
- 2 Whether the deceased was unfairly terminated from employment by the respondent.
- 3 Whether the deceased was entitled to the claimed employment dues and compensation.
Ratio Decidendi
The court found that the claimants failed to provide evidence beyond their pleadings to establish the existence of an employment relationship between the deceased and the respondent. In the absence of such evidence, and with the claim being undefended, the court held that the claimants did not discharge the burden of proof required to sustain their claims. Consequently, the entire claim was dismissed for lack of proof.
Court Disposition
claim dismissed
Orders
- The claimant's claim is dismissed with no order for costs.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 916 OF 2012
ROSEMARY A. IMBAYI AND HUMPHREY BUSENA
(Legal Representatives of the Estate of Jacob Auta Busena……………….….CLAIMANTS
VS
CENTURY DRYCLEANERS LIMITED…………………………….........…..RESPONDENT
JUDGMENT
Introduction
1. This claim was originally filed by Jacob Auta Busena (now deceased). Pursuant to a limited grant of Letters of Administration Ad Litem issued by R.E Ougo J on 28th February 2017, an order of substitution was made by NdumaJ on 15th May 2017.
2. The matter subsequently came up for hearing before me during the Nairobi Station Service Week on 15th October 2018. On 2nd July 2012, a Notice of Appointment of Advocates was filed on behalf of the Respondent by Samuel Ndegwa& Co Advocates. However no Reply was filed and there was no appearance for the Respondent at the hearing. Rosemary A. Imbayi testified for the Claimants.
The Claimants’ Case
3. In an amended Statement of Claim filed in court on 27th September 2017, the Claimants state that the Deceased was employed by the Respondent as a general labourer at a monthly salary of Kshs. 3,000 effective 1989. The Deceased’s salary was progressively increased to Kshs. 7,165 as at the time he left the Respondent’s employment.
4. The Claimants claim that the Deceased was unfairly terminated on 23rd January 2012 after demanding a salary increment. The Claimants add that the Deceased was being underpaid by Kshs. 1,558. 90 per month. Additionally, he was not paid house allowance.
5. The Claimants further claim that the Deceased worked from 7. 30 am to 6. 00 pm, from Monday to Sunday and was not paid overtime compensation.
6. The Claimants’ claim is as follows:
a) Salary for 23 days worked in January 2012……………………..Kshs. 7,716. 50
b) 1 month’s salary in lieu of notice……………………………………....8,723. 00
c) 21 days annual leave balance…………………………………………..7,045. 50
d) Underpayment………………………………………………………...19,520. 60
e) Severance pay for 23 years…………………………………………..100,676. 00
f) 12 months’ salary in compensation…………………………………...104,676. 00
g) Overtime compensation (weekdays)………………………………..1,159,607. 50
h) Overtime compensation (Sundays)…………………………………....515,381. 15
i) Costs plus interest
Findings and Determination
7. In a claim arising from employment such as the current one, the first issue for the Claimant to prove is the existence of an employment relationship capable of enforcement by the Court. This becomes even more critical where the claim is undefended and there are therefore no admissions on which the Claimant can leverage.
8. In the instant case, apart from statements made in the Claimants’ pleadings, no evidence was led to establish an employment relationship between the parties. The result is that the entire claim is unsupported and therefore fails.
9. In the end, the Claimant’s claim is dismissed with no order for costs.
10. Orders accordingly.
DATED AND SIGNED AT MALINDI THIS 6THDAY OF DECEMBER 2018
LINNET NDOLO
JUDGE
DELIVERED AT NAIROBI THIS 14TH DAY OF DECEMBER 2018
MAUREEN ONYANGO
JUDGE
Appearance:
Mr. Okemwa for the Claimants
No appearance for the Respondent