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ELCDismissedNot stated in the judgment as provided· [2016] KEELC 137 (KLR)

Martin Juma Kundu v Kemu Salt Packers Production Limited [2016] KEELC 137 (KLR)

Employment and Labour Relations Court
25 November 2016
OMOnesmus Makau
1,868 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that piece-rate workers who can't prove a contract of service are independent contractors, so Employment Act termination protections don't apply.

What this practically means

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Executive summary

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The claimant sued the respondent seeking terminal dues, compensation for alleged unlawful and unfair termination of employment on 28.3.2015, and a Certificate of Service. The respondent denied an employment relationship, contending the claimant was an independent contractor engaged on piece rate basis as and when loading and packaging work was available, and that he left on his own accord after completing the contracted job. At trial, the claimant (Cw1) testified he was a supervisor earning Kshs 500 per day from 2004, signing an attendance register and payroll, and was barred from the premises on 28.3.2015 without cause, notice or hearing. The defence witnesses established that loaders worked on piece rate, waited outside the gate for work, were paid according to output, did not sign attendance registers or receive payslips, and needed no permission to absent themselves. The court framed three issues: the nature of the contract, whether termination was unfair, and entitlement to relief. It found the claimant had failed to discharge the burden of proving a contract of service and held he was an independent contractor under a contract for services on piece work. Consequently, the substantive and procedural fairness protections of sections 35, 40, 41 and 45 of the Employment Act did not apply. The claimant's cited precedents were distinguished because there the employer admitted casual employment and continuous service was proved, engaging section 37 conversion. All reliefs were declined and the suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Contract of service versus contract for services

Holding

The claimant failed to prove a contract of service; he was an independent contractor engaged on piece work basis

Reasoning

The court applied the definition of 'employee' under section 2 of the Employment Act and common-law control tests. Evidence showed the claimant was paid by the amount of work done at an agreed piece rate, waited at the gate for work when available, did not sign the attendance register, was not taxed and could absent himself without permission. The defence testimony of Rw1 and Rw2 was consistent and proved the claimant was never part of the respondent's establishment.

p. 3
02

Unfair termination

Holding

No unfair termination since statutory fairness protections apply only to employees under contracts of service

Reasoning

Termination is unfair where the employer fails to prove valid reasons and fair procedure under the Employment Act. However, having found the claimant to be an independent contractor on piece work, the court held that sections 35, 40, 41 and 45 guaranteeing substantive and procedural fairness were inapplicable, so even a dismissal before completing assigned piece work carried no entitlement to those protections.

p. 4
03

Distinguishing of cited precedents

Holding

The authorities cited by the claimant were distinguishable on their facts

Reasoning

In Mary Kistao Ngowa and Kwekwe Mwakela, the employers admitted the claimants were casual employees and the claimants pleaded and proved continuous service leading to conversion to regular term contracts under section 37 of the Employment Act. Here the claimant neither pleaded nor proved continuous full-time service, and the respondent consistently maintained he was an independent piece work contractor.

p. 4

Legal principles established

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  • The burden of proving a contract of service lies on the claimant, and where the worker is an independent contractor on piece work, the substantive and procedural fairness protections of sections 35, 40, 41 and 45 of the Employment Act do not apply

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear his or her own costs

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 37
  • Employment Actsections 35, 40, 41 and 45

Cases cited (2)

  • Mary Kistao Ngowa & 37 others vs Krystalline Ltd
    [2014] eKLR
  • Kwekwe Mwakela vs Krystalline Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (court not expressly stated in the excerpt)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Martin Juma Kundu v Kemu Salt Packers Production Limited [2016] KEELC 137 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/137/eng@2016-11-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.