Mwangi v Mbugua (Cause 312 of 2016) [2021] KEELRC 2313 (KLR) (7 July 2021) (Judgment)

Neutral citation: [2021] KEELRC 2313 (KLR)

REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE 312 OF 2016
HS WASILWA, J
JULY 7, 2021

BETWEEN
WINFRIDA MUTHONI MWANGI ........................................................ CLAIMANT

AND
ANN WANGARI MBUGUA ............................................................... RESPONDENT

JUDGMENT

1. By an amended memorandum of claim dated November 9, 2017 and led on the November 13, 2017,
the claimant sued the respondent for alleged unfair termination and to be paid her terminal dues.

2. The claimant avers that she was employed by the respondent as a house keeper sometime on the March
15, 2007 and placed on probation for a period of three (3) months earning a salary of Kshs 3,000 and
upon conrmation her salary was increased to Kshs 5,000 with an annual increase of Kshs 500. Later
on, she was also promoted to the position of receptionist and supervisor of the respondent’s business.

3. The claimant avers that she worked in a guest house called Haki Yako Guest house which establishment
was owned by both the respondent and her husband Joseph Mbugua Mwiberi (deceased).

4. Upon the demise of the respondent’s husband on or about May 15, 2015, the respondent approached
the claimant and demanded all the books of accounts in her possession and set them ablaze.
Immediately thereafter the claimant was red and paid Kshs 8500 being her May, 2015 salary and Kshs
25,000 being pay in lieu of notice.

5. She avers that throughout her employment, the respondent made her work on all o days, public
holidays and was never granted leave for the 8 years worked for the respondent. She also stated that she
was never paid house allowance as dictated by the law.

6. She therefore prays for the following reliefs; -

a. A declaration that the claimant’s dismissal was unlawful, unjust and discriminatory and the
same amounts to unfair termination.

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 b. Compensation for unfair termination.

c. An order compelling the respondent to settle the outstanding benets as tabulated at

d. General damages.

e. Costs of the suit and interest thereof at court rates.

7. The respondent entered appearance and led a response to claim denying the claim as pleaded in
the amended claim and in addition stated that she does not know the claimant neither has she ever
employed her. She avers that the business known as Haki Yako Guest house was solely owned by her
husband Joseph Mbugua Mwiberi, who passed away on the May 14, 2015.

8. She maintained that she has never co-owned the said business and therefore could not have employed
the claimant as alleged. She armed that there is no employer-employee relationship between her and
the claimant to give rise to the claim herein.

9. She prays for the claim against her to be dismissed with costs to her.

Hearing.
10. This suit was heard on the March 17, 2022 and on the May 23, 2022. During hearing the claimant
testied as CW-1 and adopted her witness statement dated August 26, 2016 and produced the
documents as appearing in the list of August 24, 2017 and supplementary list dated November 9, 2017
as her exhibits. In addition, the claimant testied that she was employed by the respondent in the year
2007 as room attendant and cleaner and promoted to be the position of receptionist sometimes in
2010. She avers that she never took her leave days. She testied that she was sacked without any reason
and on reporting the issue to the labour ocer, the said ocer calculated her dues but the respondent
refused to pay her leading to the institution of this suit.

11. Upon cross examination by Kamau Advocate, the witness testied that she knew the respondent before
she was even employed by her. She avers that the respondent was the manager of the Hotel while her
husband was the director. She however maintained that she dealt with the respondent most of the time
and upon termination the respondent paid her three months’ salary in lieu of notice and her may salary
only.

12. The respondent testied in person as RW-1 and adopted her witness statement dated August 18, 2018
and produced the document appearing in the list of documents dated August 18, 2018 as her exhibits.
She added that she is a retired nurse and currently lives at Langa Langa areas in Nakuru County.

13. Upon cross-examination by Daye Advocate, the respondent testied that she never employed the
claimant neither was she her supervisor. She avers that Haki Yako Guest house was a business that
was run by her late husband. On being shown the letter from the labour ocer she admitted being
invited to the labour oce where she attended and directed to pay the claimant however she was not
in a position to pay the claimant as she did not have any authority to pay her. She maintained that she
never employed the claimant and therefore the claimant was not her employee.

Claimant’s Submissions
14. The claimant submitted from the onset that she was an employee of the respondent and the
handwritten letter for payment of her terminal dues is evidence of the said employment. It was argued
that having agreed on mode of payment of her terminal dues the respondent ought to be estopped

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 from alleging that she was not the claimant employer. To support her case, the claimant relied on the
case of Emo Investment Limited v Stephanus Petrus Kruger [2010] eKLR.

15. It was submitted further that the respondent who has denied employing the claimant is now the
manager and the one in control of Haki Yako Guest house business as such she is as good as the
employer and should shoulder the responsibility of paying the claimant her terminal dues. To support
her argument the claimant relied on the case of Lucy Nyandia Mwangi v Mathenge and Muchemi
Advocates [2013] eKLR where the court held that;-

“ The Employment Act, 2007, the Labour Relations Act, 2007 and the Industrial Court Act,
2011 dene an employer to include,

"any person, public body, rm, corporation or company, who or which has
entered into a contract of service to employ any individual and includes the agent,
the foreman, manager or factor of such person, public body, rm of corporation."

This makes it possible for other persons acting for the principal employer to be held to
be employers themselves. Managers, agents and factors in businesses can be employers. An
associate or manager in a law rm can be an employer. An associate or manager who exercises
decisional control; denes the work to be done by the employees; controls the tools of trade
of the business; and who perhaps even pays the employees their salaries, can be deemed to
be an employer… The Labour Institutions Act, 2007 adopts a slightly dierent denition
of the term employer, closer to the impugned Work Injury Benefits Act, 2007. It denes the
term to mean,

"a person, including the government, who employs or has employed an employee
and where appropriate includes:

[a] an heir, successor or transferor of an employer; or

[b] the agent, director, or any person authorized to represent the

Under this denition Waweru and Njoroge could be deemed to have employed Nyandia.
Waweru was a beneciary under the Estate of GK Mathenge. He and Nyandia transferred,
or inherited the business from GK Mathenge”

16. It was argued that the claimant having been employed in 2007 was unceremoniously terminated in
2015 without giving reason for termination or subjecting the claimant to disciplinary process as such
the claimant’s termination was unfair. The claimant relied on the case of Lucy Nyandia Mwangi v
Mathenge and Muchemi Advocates (supra) where the court held that;-

“ If the respondent was convinced after the death of GK Mathenge that it did not wish
to proceed with the old employees, then it ought to have come out openly and advised
the employees it considered the contracts terminated by reason of death or restructuring,
and proceed to oer redundancy benets under section 40 of the Employment Act. It was
not sucient to tell the employee that her contract had automatically lapsed by reason
of death. It ought to have declared redundancy and oered redundancy package. If a
business owner dies, and the business stops trading because he or she has died, redundancy
law comes into play, because redundancy is the ‘’loss of employment, occupation, job
or career, by involuntary means, through no fault of the employee… The deceased’s
personal representative, or the successor employers where the business continues, would

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 be responsible for payment of redundancy dues. Where the employer has died and the
employee is not re-employed, the employee is taken as having left employment by reason
of redundancy. An employer in the circumstances would include any person, who as a
consequence of the death of the original employer has inherited the power to run the
business”

17. The claimant in conclusion submitted that the totality of the case before this court shows that the
claimant was unfairly terminated as such deserving of the reliefs sought and urged this court to allow
the same as prayed.

Respondent’s Submissions
18. The respondent submitted from the onset that there is no employment relationship between her and
the claimant and the fact that she is the widow of the owner of the Haki Yako guest house does not
make her an automatic employer of the claimant. She argued that since there is not employer-employee
relationship between the parties herein this court is deprived of jurisdiction to hear and determine this
case.

19. It was submitted without prejudice that the claimant having been employee by Haki Yako Guest House
was not terminated rather that she consented to her termination as by the handwritten agreement
signed therein as such the termination was fair in the circumstances and the claim was led as an
afterthought which ought to be dismissed.

20. I have examined the evidence and submissions of the parties herein.

21. The claimant has indicated that the respondent was the manager of the business called Haki Yako which
business was run by the respondent’s late husband.

22. The respondent indicated that the business was run by her husband and she has no employer employee
relationship with the claimant.

23. The claimant has not produced before court any letters of administration to indicate that the
respondent was the one who took over her husband’s business or take responsibility for any liabilities
in relationship to employees of the business. Without proof that the respondent is responsible for the
business ran by her late husband, I nd that the claim cannot stand.

24. I dismiss this claim accordingly with no orders of costs.

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