REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC CAUSE NO E284 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
ABDIRIZAK ADEN NOOR……………………………..…..….. CLAIMANT
VERSUS
DAHABSHIL GROUP T/A DABASHIL MONEY TRANSFER CO. LTD………………………………………………………….….. RESPONDENT
JUDGMENT
The Claimant commenced this suit on 6th April 2023 vide a statement of claim dated 30th March, 2023 alleging unfair termination of employment by the Respondent.
He prayed for:
(i) Declaration that termination of employment by the Respondent was unfair.
(ii) Kshs.2,176,110.00 being six (6) months salary lost after leaving Zam Zam foundation.
(iii) Three months’ salary Kshs.1,088,120.00
(iv) One month’s salary Kshs.604,495.00
(v) Interest on (iii), (iv) and (v) above
(vi) Costs of the suit
(vii) Declaration that the Respondent breached the terms of the offer letter of appointment accepted by the claimant.
The Claimant’s case was that he attended interviews on 13th February, 2022 and 26th February, 2022 at the instigation of the Respondent, received a congratulatory message on 22nd March, 2022 for having emerged the best candidate, accepted the offer on 23rd March 2023 and returned the same to the Respondent and was scheduled to report to work on 24th April, 2022 and resigned from employment.
That after back and forth, he received an email on 18th June, 2022 indicating that the company was unaware of the offer.
By a response dated 28th May, 2024, amended on 28th October 2024, the Respondent stated that being a holding company, it was distinct from it subsidiaries and was not privy to any job offers or contracts with its subsidiaries. It denied having advertised the position of Chief Finance Officer, conducted interviews or made any offer and did not sign any offer letter.
The pith and substance of the Respondent’s case is that it is separate from Dahabshiil Real Estate and not privy to its dealings with the claimant and was thus a stronger to the claimant’s allegations. That the demand letter was not addressed to it. The Respondent denied all allegations by the claimant.
On cross-examination, the claimant confirmed that he received emails on the position, applied and communicated with both Mr. Abbid Aziz Maaed and Safi Said and the two were not shareholders of the Respondent as per Form CR12.
It was his testimony that the job he applied for was in SOMTEL Group, a telecommunication, company, was interviewed in Nairobi but the position was in Hargeisa, Somaliland and the offer was by Dahabshiil Real Estate.
The claimant admitted that the did not file Zam Zam Foundation’s registration or bank statement or evidence of having received any payment from Zam Zam Foundation.
The witness further confirmed that wite Dahabshiil was a money transfer company, SOMTEL was a telecommunications company and the offer letter was from a real estate company and one Saeed M. Duale was involved in both companies.
On re-examination, the claimant testified that SOMTEL was part of Dahabshiil Group and the latter represented the former and Mr. Saeed M. Duale signed the offer letter and the company chose the venue for the interview.
Mr. Abdi Mohammed Abdi testified on behalf of the Respondent andconfirmed that he was the Chief Executive Officer of the Respondent and a director of the company and the information on Form CR12 was correct.
The witness testified that Dahabshiil was not a holding company of the company in Somaliland and there was no binding contract between the claimant and the Respondent.
The witness further admitted that Mr. Mohamed Saeed Duale was the founder of the Respondent company. That the company had no link in Somaliland.
Claimant’s Submissions
As to whether there was an employer/employee relationship between the parties, reliance was placed on the provisions of section 12 of the Employment and Labour Relations Court Act and Article 162 (2) of the Constitution of Kenya and the decisions in Adeyo Waga Samwel & 10 others v Western Steel Mills Ltd & 2 others (2018) eKLR on the court’s jurisdiction, Ogenga v Kenya Pipeline Co. Ltd (2022) KEELRC 14677 (KLR) on the commencement of an employment contract at common law Thomas Ogunde Mboya v Grand Royal Swiss Hotel (2022) and Keith Wright v Kentegra Brotechnolgy (EP2) Ltd (2021) KEELRC 2408 (KLR), on acceptance of offers, to submit that the parties entered into an employment relationship on 23rd March, 2022 when the claimant accepted the offer.
Reliance was further placed on the provisions of section 17, 24 and 36 of the Evidence Act on admissions to submit that the Respondent was aware of its relationship with Dahabshiil group in Somaliland, that the Respondent was the holding company of Dahabshiil Group Somaliland and was estopped from alleging otherwise.
As to whether the Respondent is liable for the actions of Dahabshiil group, its Subsidiary, Counsel submitted that the founder of the two companies was the same.
Reliance was placed on the sentiments of the court in Embakasi Management Ltd & 8 others v Impend Bank Ltd (In receivership) & another (2022) KECA 7 (KLR) on the concepts of holding and subsidiary companies to urge that the two companies had a common ancestry and same founder or chairman.
Counsel submitted that the two companies had a common commercial interest and were a single economic entity citing the decisions in DHN Food Distribution Ltd v London Borough of Tower Hamlets (1976) LWLR 852 and Ex Parte: Gose No. & others (2013) (2) All SA 437 (WCC) to urge that the holding company could be held liable for acts or contract of the subsidiary thereby ignoring the corporate entity of the company.
On reliefs counsel submitted that the Respondent terminated the claimant’s employment without due process and was thus entitled to the reliefs sought.
Respondent’s Submissions
As to whether there was a contractual relationship between the claimant and the Respondent, Counsel submitted that the claimant did not produce a job advertisement or his application letter.
That there was in consistency between the interview process and the offer of employment and the Respondent was not involved in any communication with the claimant.
Counsel submitted that Dahabshiil Group was not operating as Dahabshiil Money Transfer Co. Ltd and the Respondent had no legal or other relationship with the claimant and its relationship with Dahabshiil Co. (Dubai) was evidenced by an Agency Agreement:
That the Respondents Operations did not extend to Somaliland.
Reliance was placed on Salomon v Saleman & Co. Ltd (1897) AC.22 on the corporate personality of the Respondent by dint of the Provisions of the Companies Act as were the decisions in K. Owino v African Commuter Services and 2 others (2025) KEELRC 600 (KLR) and Ogada & another v Osser & 4 others (2023) KEHC 27431 (KLR) to submit that the Respondent was neither privy to the letter of offer nor the entity that made it and was wrongly sued.
Counsel maintained that the Respondent was a duly incorporated limited liability company whose business was different from that of Somtel or Dahabshiil Real Estate (DRE) and is a distinct legal entity and was wrongly sued.
Finally, counsel submitted that an evaluation of the pleading and evidence on record disclosed that the claimant had no cause of action against the Respondent and no breach attributable to the Respondent had been demonstrated and the suit was for dismissal.
Analysis and determination
Documents on record reveal that the claimant applied for the position of Chief Financial Officer SOMTEL Group and the first interview was on Zoom as per the email from Safi Said, Dahabshiil Group Human Resource Department, dated 20th February, 2022.
The interview scheduled for 21st February, 2022 was cancelled vide email dated on even date at 8.51 am and the interview took place on 26th February 2022 and by email dated 22nd March, 2022 at 14.39, Dahabshiil Group Hargeisa Somaliland. The Direction Human Resource and Administration Mr. Abdilaziz Sheikh Maad, congratulated the claimant for having been selected as the best candidate, attached an offer letter and requested for the signed copy or feedback by 10.00 am the following day.
The offer letter was signed by one Mr. Saeed M. Dualeh, the Vice Executive Chairman of Dahabshiil Group and the claimant signed it on 23rd March, 2022.
As per the offer of appointment letter, the claimant was appointed the Chief Finance Officer DRE at Hargeisa Somaliland at USD 5000 per month among other terms.
By email dated 21st April, 2022, Mr. AbdiLaziz SheIkh Maad informed the claimant that the management of Dahabshiil had post poned the reporting date until further notice from Human Resource.
However, by 24th May, 2022, no communication had been received as evidenced by the claimant’s email dated 24th May, 2022 and 12th June 2022.
Finally, by email dated 18th June 2026 Safi Said notified the claimant that she had no clue about the job offer or position, that only one Mr. Abdilaziz knew about it and had left without any update.
Significantly, Safi Said is the one who thanked the claimant for applying for the position and invited the claimant for a Zoom meeting on Sunday at 3.15 pm and was thus aware of what was going on and remained the contact person until the offer was made.
The issues for determination are:
(i) Whether there was an employment relationship between the claimant and Dahabshiil Group.
(ii) Whether the Respondent was liable for liabilities of Dahabshiil Group, Somaliland.
(iii) Whether the claimant is entitled to the reliefs sought.
On the 1st issue and as adverted to elsewhere in this judgment, Dahabshiil Group interviewed the claimant and offered him employment as the Chief Finance Officer DRE and the claimant accepted the offer on 23rd March, 2022. The Letter from Dahabshiil Group signed by Mr. Saeed M. Duale, was entitled “Offer of Appointment and contained the terms and conditions of employment as the Chief Finance Officer. The offer was complete in materiality clear and was communicated to the claimant. It was envisioned that the claimant’s acceptance of the offer would result in a legally binding agreement and the acceptance sealed the deal.
It is trite law that at common law, a contract comes into existence when an offer made by one party is unequivocally accepted by the person(s) to whom the offer is made and both parties must have intended to create a legal relationship, the purpose of the agreement must have been legal and any necessary formalities must have been complied with.
Clearly, Dahabshiil Group and the claimant contemplated a legal relationship between them of employer-employee and it came into existence when the claimant signed the letter of offer on 23rd March, 2022.
He became an employee of Dahabshiil Group as defined by the provisions of section 2 of the Employment Act. A contract of service came into existence.
The sentiments of the court Thomas Ogunde Mbuya v Grand Swiss Hotel (Supra) and Kelth Wright v Kentegra Brotechnology (EPZ) Ltd (Supra) and Ogenga v Kenya Pipeline Co. Ltd (Supra) are spot on for the foregoing proposition of law.
Concerning termination of the claimant’s employment, it is common ground that Dahabshiil Group, Somaliland, the claimant’s employer did not honour its obligations under the contract of employment dated 19th March, 2022 as evidenced by email communication between the claimant and Mr. AbdiLaziz and Safi Said.
The Respondent played no role in the termination of the claimant’s employment as it was not the employer, Dahabshiil Group Somaliland was.
The next and critical issue to determine is whether the Respondent was liable for the actions of Dahabshiil Group Somaliland.
Notably, since Dahabshiil Group was based in Somaliland, none of its constitutive documents or evidence of its registration was availed.
In the case of the Respondent, Form CR 12 was availed showing that one Mr. Mohamed Duale Saeed was the only shareholder of the company but was not a director of the Respondent company and signed the claimant’s letter of offer of employment as the Vice Executive Chairman of Dahabshiil Group, which would appear to suggest that the company or business in Hargeisa Somaliland may have been part of his business portfolio.
Although the claimant’s counsel submitted that the Respondent admitted in its submissions that it was a holding company, submissions are neither evidence nor pleading.
In Daniel Torotich Arap Moi v Mwangi Stephen Muriithi & another (2014) eKLR, the Court of Appeal held:
“Submissions are generally parties ‘marketing language’, each side endeavouring to convince the court that is care is the better one. Submissions, we reiterate do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented…”
Similarly, submissions are not binding on the court. (see Imperial Bank Ltd v Bakari Juma Bench Benda Pande (2016) eKLR Erastus Wade Opende v Kenya Revenue Authority & another HCCA No. 46 of 2007, Nancy Wambui Gatheru v Peter W Wanjere Ngugi NRB HCCC No. 36 of 1993 and Nganga & another v Owiti & another (2008) IKLR 749.
In the Courts view, had the Respondent admitted that it was a holding company of Dahabshiil Group Somaliland in its pleadings or availed evidence of the relationship, the court would have considered that fact as established. In this instant other than the fact that Mr. Mohamed Saeed Duale was the founder of the businesses as discernible from the internet and the fact of having signed the letter of offer, there was verifiable evidence to show that Dahabshiil Group was indeed registered company or its relationship with the Respondent.
Even assuming that the Respondent was the holding company of the Dahabshiil Group in Somaliland, it be hooved the claimant to prove that the holding company was indeed liable on contracts entered into by the subsidiary company in the circumstance of the case bearing in mind that the Respondent was not involved in the interview or recruitment process and the claimants was employed by the Dahabshiil Group Somaliland and his duties and responsibilities were restricted to the company outside Kenya. This is borne by the fact that Mr. Saeed Duale was not a director of the Respondent Company nor was it demonstrated that he participated in the hiring of staff in all the companies or organizations he may have been associated with.
It is trite law that a registered company is a legal person distinct and separate from its members, directors or managers as held by the House of Lords in Salomon v Solomon & Co. Ltd (1897) A. C. 22.
Subsidiary companies are treated as distinct legal entities as well, save in accounting for certain categories of companies where the law requires preparation of Group financial statements in addition to individual financial statements under the Companies Act of Kenya and this applies to companies’ operating in Kenya only.
In this case Dahabshiil Group was a foreign company governed by foreign law and no evidence was adduced to prove that its accounts, recruitment or operations were centralized in Kenya or Somaliland.
Whereas it is trite that both the legislature and courts of law have recognized instances in which the corporate shell may be pierced or the veil of incorporation lifted or the company and its subsidiaries regarded as an economic entity, these are exceptions to the general ruleand have a legal justification, such as taxation, investigation, accounting, where the company and its subsidiaries are indistinguishable, fraud or improper conduct and agency, trustee or nominee relationships among others.
In the instant case, while the Respondent company is a money transfer company, Dahabshiil Group Somaliland, the employer of the claimant was a Real estate company and no evidence of agency trust or nomineeship was provided.
Evidence of how the two companies were managed or operated would have shown if they were operating as an single economic unit or not.
The UK Court of Appeal decision in DHN Food Distributors Ltd V London Borough of Tower Hamlets (Supra), though persuasive, related to a holding and subsidiary companies operating in the same city and country.
Similarly, the material facts of this case are patently distinguishable in that the holding company in that case was using premises owned by one of its subsidiaries and the vehicles it was using for its groceries and provision business were owned by another subsidiary. Evidently, the company and its subsidiaries were indistinguishable. They operated as a single entity.
The Lord Denning stated:
This case might be called “Three in one.” “Three companies in one” the one in three. “One group of three companies…”
“… The three companies should, for present purposes be treated as one, and the parent company DHN should be treated as that one. So DHN are entitled to claim compensation accordingly…”
Golf LJ held that the subsidiary company was holding the land in trust for the subsidiary company.
The foregoing, in the court’s view cannot be said of the Respondent and Dahabshiil Group Somaliland in the present case.
It is notable that Dahabshiil Group operated from Damal Business Centre Hargeisa, Somaliland and had a Director of Human Resource and Administration and an assistant named Safi Said.
Having failed to fit his case into any of the recognized exceptions to the rule in Salomon v. Salomon & Co. Ltd (Supra), the Court is not persuaded that the Respondent Company was liable for liabilities incurred by Dahabshiil Group, Somaliland.
On the reliefs prayed for, the court is not persuaded that the claimant is entitled to any against the Respondent company.
Having failed to prove that the Respondent employed or engaged him in any way or terminated his contract of service with Dahabshiil Group Somaliland or was liable for the debts and liabilities incurred by Dahabshiil Group, Somaliland, no relief commends itself against the Respondent.
The claimant sued a party it had no contractual relationship with and failed to demonstrate why the party ought to be held liable for another company’s breaches.
The upshot is that the claimant’s case against the Respondent is unsustainable and it is accordingly dismissed.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH DAY OF APRIL, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.