[2019] KEELRC 2190 (KLR)
The court held that while Section 9 of the Employment Act places an obligation on the employer to prepare and execute a contract of employment, the framing of the claimant's question was improper. Since the respondent had denied the existence of an employer-employee relationship, it was untenable for the claimant to...
Source-derived case information.
- Citation
- [2019] KEELRC 2190 (KLR)
- Parties
- Claimant: Salome Maina; Respondent: Chief Officer Dept. of Education, Laikipia County Government
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 35 of 2018
- Procedural Posture
- Employment Claim / Ruling on Objection During Hearing
- Outcome
- Objection upheld.
- Judges
- AN Makau
- Legal Topics
- Burden of Proof, Existence of Employment Contract, Employer Obligations, Section 9 Employment Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Maina
Claimant
Chief Officer Dept. of Education, Laikipia County Government
Respondent
Procedural Posture
Employment Claim / Ruling on Objection During Hearing
Legal Issues
- 1 Whether the claimant can properly ask the respondent's witness why there is no employment contract.
- 2 Whether the burden of proof regarding the existence of an employment contract lies with the claimant or the respondent.
Ratio Decidendi
The court held that while Section 9 of the Employment Act places an obligation on the employer to prepare and execute a contract of employment, the framing of the claimant's question was improper. Since the respondent had denied the existence of an employer-employee relationship, it was untenable for the claimant to ask the respondent's witness why there was no contract. The proper approach would be for the claimant to first establish the existence of employment, after which questions regarding the terms or existence of a contract could be relevant. The objection to the question was therefore well founded and upheld.
Court Disposition
Objection upheld.
Orders
- The objection to the claimant's question is upheld.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CASE NO. 35 OF 2018
SALOME MAINA.....................................................CLAIMANT
VERSUS
CHIEF OFFICER DEPT. OF EDUCATION,
LAIKIPIA COUNTY GOVERNMENT..............RESPONDENT
RULING
1. The objection is on the question being asked regarding the existence of a contract. Mr. Chege objects that the questions being put are not proper as the Claimant should be proving her employment and not asking the Respondent’s witness why there is no employment. There is a tacit admission, he says, that there is no employment based on the question asked.
2. Mr. Opiyo for the Claimant argues that the question is relevant as Section 9 of the Employment Act places a burden on the employer to prepare and cause to be executed a contract of employment. He thus asserts it is a proper question to put to the witness.
3. Mr. Chege in brief reply states that the proper question to be asked is on the issue of employment as the Respondent has asserted there is no employee-employer relationship and thus the question as whether there is no contract is superfluous.
4. The objection taken relates to the framing of a question in relation to the issue of an employment contract. Indeed it is true as Mr. Opiyo asserts that Section 9 of the Employment Act imposes an obligation on an employer to cause a contract to be drawn where the employment is for more than a month. The Claimant’s representative however is misplaced in the framing of the question put. As pointed out by Mr. Chege the Respondent has denied the existence of the employer-employee relationship. It thus would be untenable to ask why there is no contract as that issue is denied by the Respondent and the Claimant has not availed a counter to that position. The proper question may be put for the witness to answer but not as to why there is no contract. Perhaps the question could be whether she was employed and what the terms were or whether she was enumerated as employee.
Objection is thus well founded and is upheld.
It is so ordered.
Dated and delivered at Nyeri this 25th day of February 2019
Nzioki wa Makau
JUDGE
I certify that this is atrue copy of the Original
Deputy Registrar