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JudgmentMakau Nthuli VS Canton Enterprises Limited11 min read

Makau Nthuli VS Canton Enterprises Limited

Employment and Labour Relations Court at Nairobi Employment and Labour Relations Court (ELRC) · · J. N. Abuodha

Summary

The court reviewed an appeal against a magistrate's judgment dismissing the appellant's claim that he was an employee of the respondent. The appellant argued he was unfairly terminated without proper procedures, but the court found the appellant failed to prove an employment relationship despite his testimony and a certificate of payment. The court upheld the magistrate's decision that the appellant did not meet the evidentiary burden to establish employment, emphasizing that the respondent did not deny paying him and the certificate of payment lacked necessary details to confirm the relationship.


  1. Through the Memorandum of Appeal dated 9th October, 2023, the Appellant appeals against the Judgment of Honourable S.A. Opande (Mr) P.M delivered on 26/9/2023.
  2. The Appeal was based on the grounds that:
    1. The Honourable Magistrate erred in law and in fact in holding that the appellant’s had not proved that he was an employee of the respondent’s against the weight of both oral and documentary evidence.
    2. The Honourable Magistrate erred in law and fact in holding that failure to give out the name of the respondent’s supervisor was fatal to the appellant’s case.
    3. The Honourable Magistrate erred in law and fact in holding that the appellant was not entitled to damages for unfair termination yet the evidence placed before the court clearly indicated that the appellant was an employee of the respondent and was unfairly terminated.
    4. The Honourable Magistrate erred in law and fact by failing to analyse the evidence before him and making a judgment that avoided a determination of all issues placed before the court for determination.
    5. The Honourable Magistrate erred in law and fact in ignoring the pleadings, evidence and submissions by the appellant and hereby making a lopsided and unjust determination.
  3. The Appellant prayed that the appeal be allowed with costs; the decision of the learned Honourable magistrate finding that the appellant was not an employee of the respondent be set aside; the finding by the learned Honourable magistrate that the appellant had failed to proof he was an employee of the respondent be set aside and a finding that he was an employee be put in its place; this Honourable Court makes a declaration that the termination of the appellant employment was unfair and unlawful and this Honourable court do make an award on compensatory damages, salary in lieu of notice and salary in lieu of untaken leave.
  4. The Appeal was disposed of by written submissions.

APPELLANT’S SUBMISSIONS

  1. The Appellant’s advocates Mwaura Kamau & Co Advocates filed written submissions dated 24th May 2024 and submitted that the Appellant had proved that he was an employee of the Respondent and that the appellant  informed the trial court that he was employed as a casual employee and had not been issued with a letter of appointment, a job identity card and/ or pay slip.
  2. Counsel submitted that the Appellant was terminated orally on 29th June 2019 and he reported the unfair termination to the Sub-County Labour office in Athi River. That the Appellant was issued a certificate of payment for himself and a co-worker which payment was for leave only and there were still pending issues in dispute that is notice and service pay which was to be settled on 15th August 2019.
  3. It was the Counsel’s submission that the Appellant told the trial court that he reported the dispute to the Labour Office in Athi River and the Respondent never denied employing him and paid him Kshs. 63,000/=.
  4. Counsel submitted that DW1 testified that Mr Samuel Omotelema Ingabo was the Respondent sub-contractor and admitted that Certificate of payment was between the Appellant and Canton Enterprises Limited the Respondent. He did not explain how the same would have been processed by the sub county labour office if there was no employer-employee relationship. The Respondent having paid the Appellant leave days was an admission that the Appellant was its employee.
  5. Counsel submitted that the Respondent should have produced a Muster Roll and/ or a register of all its workers to prove that the Appellant was not among them and that nothing was put forward by the Respondent that would have prevented the Appellant from working for the Respondent just as DW1 was.
  6. On the issue of whether the Appellant was unfairly terminated, Counsel submitted that the Appellant was summoned and orally informed by the Respondent’s supervisor that his services had been terminated.
  7. Counsel submitted that DW1 told the court that the Appellant was not its employee and was therefore not a party to the termination and did not provide any reason and/or justification of terminating the Appellant. That the Appellant told the court that he was not issued with any warning verbal or written, not issued with any notice to show cause or subjected to a disciplinary process in sections 41-45 of the Employment Act.
  8. Counsel relied on the case of Walter Anuro vs Teachers Service Commission [2013] eKLR and submitted that for a termination to pass the fairness test there must both substantive justification and procedural fairness. Counsel relied on section 43 and 45(2) of the Act to submit that the Respondent did not have a fair reason to terminate him. Counsel relied on the case of Rebecca Ann Maina & 2 Others vs Jomo Kenyatta University (2014) eKLR on requirement of employer giving the employee a clear charge to sufficiently prepare their defence as per section 41 on procedural fairness. That due procedure was not followed in this case as well as a fair reason hence unfair termination.
  9. On the issue of whether the Appellant is entitled to compensatory damages as pleaded in the lower court, counsel submitted on the headings of notice pay, gratuity and compensatory damages that he was entitled to notice pay of Kshs 26,000/=, gratuity of Kshs 30,000/= and compensation for unfair termination of Kshs 312,000/= all totalling to Kshs 364,000/=

RESPONDENT’S SUBMISSIONS

  1. The Respondent’s advocates Ms. HKM Associates Advocates filed written submissions dated 25th July 2024. On the issue of whether the instant Appeal was meritorious, Counsel submitted that the Appeal is unfounded as the decision to dismiss the Appellant’s claim is tenable given that the Appellant failed to discharge his evidential burden.
  2. Counsel submitted that there was no mention of the alleged supervisor which was fatal to the Appellant’s case and the alleged period of engagement he ought to have known his immediate supervisor. That the Appellant relied on alleged two letters dated 9th July, 2019 and 17th July 2019 directed to the Respondent yet there is no evidence that was adduced in writing nor orally during the hearing showing that the directors or authorized officers of the Respondent appeared before sub-county Labour office, when they appeared and the decision made thereof.
  3. Counsel submitted that on the alleged Certificate of payment, there is neither indication nor mention of the name of alleged officer who appeared before sub-county Labour officer and signed on behalf of the Respondent.
  4. Counsel submitted that the Respondent was neither summoned by the Sub-County Labour office, nor does it have any employment relationship with the Appellant and thus the issue of termination does not arise whatsoever.
  5. Counsel relied on the case of Joseph Linus Musamali versus Bamco Construction Company [2020] eKLR while submitting that the Respondent did not show apart from merely alleging that there was an employer-employee relationship. That its projects on proposed development on Plot L/R No. 1338/168 were sub-contracted to Mr Samuel Ometelema Ingabo whose responsibility was to provide labour for the said project and Appellant during hearing confirmed knowing Mr. Ingabo.
  6. Counsel relied on the case of Mbuthia Macharia versus Annah Mutua & Another [2017] eKLR while submitting that the evidential burden did not shift in course of the trial as the Appellant did not have cogent evidence whatsoever.
  7. Counsel submitted that the Appellant being well conversant with the facts of the claim failed to make an application for notice to produce the master roll/ or register of all its workers. Counsel relied on the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] e KLR and submitted that each party knows the case he has to meet and cannot be taken by surprise at trial.
  8. Counsel submitted that parties cannot rely on submissions to do that which should have been done by pleadings and evidence and relied on the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020]. That the Appellant did not make an application for notice to produce before the trial commenced hence the Appeal lacks merit and does not raise any triable issues worthy of this court’s time.

DETERMINATION

  1. The court has considered the pleadings and submissions filed by the parties herein and proceeds to analyse them as follows.
  2. The principles which guide this court in an appeal from a trial court are now well settled. In Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the same stated with regard to the duty of the first appellate court;

“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

  1. The Judgment of the trial court was entered as against the Appellant on the basis that it was contended that the Appellant did not prove that he was an employee of the Respondent. His claim was dismissed with no orders as to costs.
  2. Having considered the appeal, the evidence in the Record of Appeal and the Submissions on record the court opines that the issues for determination are –
  3. Whether there was an employment relationship between the Appellant and the Respondent.
  4. Whether the Appellant was entitled to reliefs sought.
  5. The Appellant testified that he was an employee of the Respondent Canton Enterprises Ltd. That he was working as a steel fixer as a casual employee being paid on a weekly basis, being paid in cash and was required to sign salary voucher that would remain with the Respondent. The Appellant did not have any document to confirm his employment but for the Certificate of Payment which the trial court held that was not evidence of the employment relationship.
  6. It was the Appellant’s case that Respondent did not explain how the certificate of service with the Respondent’s name would have been processed by the Sub County Office if there was no employer-employee relationship and that the Respondent did not deny having paid the Appellant Kshs 63,000/=.
  7. On the other hand, the Respondent’s case was that the apart from the Certificate of payment there was no indication of the name of the alleged officer who appeared before the Labour Office and signed on behalf of the Respondent.
  8. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides that:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

  1. This was the position in Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:

“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”

  1. The Respondent would like the court to believe that the Appellant was a complete stranger. However, a look at the evidence on record particularly the Sub Contractors Agreement, the court agrees with the trial Court’s finding that it was the sub contractor’s duty to provide labour for the Respondent. The Appellant at least should have called a fellow employee or  the one he alleges was also terminated to corroborate his evidence but he did not.
  2. The jurisdiction of the Employment and Labour Relations Court as far as employment matters are concerned is limited by the existence of an employment relationship as defined in law and the Court must always satisfy itself on this account before proceeding any further.
  3. The Court is fully aware that it is the responsibility of an employer to document the employment relationship and in certain respects, the burden of proving or disproving a term of employment shifts to the employer. This does not however release the Claimant from the burden of proving their case. Even in cases where an employment contract is oral in nature, the Claimant must still adduce some evidence whether documentary or viva voce to corroborate their word. More importantly, where an employee believes that the employer has in its possession some documents that would support the case of the employee, that employee is obligated to serve a production notice.
  4. The burden of proof in Civil Cases is on a balance of probability. Lord Denning J. in Miller vs Minister of Pensions (1947) 2 ALL ER 372, discussing that burden of proof held that that degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. This Court finds that on a balance of probabilities the Appellant failed to prove the existence of employer-employee relationship with the Respondent and the Respondent equally failed to join the sub-contractor but produced its contract to support its case that it was not the Appellant’s employer.
  5. Further in the case of Transport Workers Union v Euro Petroleum Products & Another [2019] eKLR, the court stated that –

The Respondents on their part did not produce any documents to prove that the grievants were neither their employees nor engaged on casual basis. However, the Claimant ought to have at the least established that there was an employment relationship between the grievants and the Respondent(s) before the respondent would be called upon to produce records.

  1. This court therefore finds that an employment relationship has serious implications on the parties. The Court must therefore be fully satisfied that it actually exists. A Claimant (appellant) claiming employment rights must prove the existence of an employment relationship. This relationship was not proved in order for the burden to shift to the Respondent to prove the terms of engagement between the Appellant and the Respondent.

Whether the Appellant was entitled to reliefs sought.

  1. The Appellant herein failed to prove the existence of an employment relationship between the Respondent and himself. In the absence of an employer-employee relationship the Court is not in a position to consider the issue of termination of employment under the Employment Act.
  2. Having found no proof of existence of an employment relationship, the entire appeal cannot hold and must fall. 
  3. In the upshot the Appeal fails for lack of merit. The court accordingly dismiss the same with costs.
  4. It is so ordered

Dated at Nairobi this ……… day of…………. 2024

Delivered virtually this……… day of ………….2024

Abuodha Nelson Jorum

Presiding Judge-Appeals Division

    Makau Nthuli VS Canton Enterprises Limited Makau Nthuli VS Canton Enterprises Limited