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ELRCOtherIndustrial Cause (Mombasa), filed 1 November 2013 (number not stated in judgment)· [2014] KEELRC 995 (KLR)

Elijah Moranga v John Leinsly Irene Onderi [2014] KEELRC 995 (KLR)

Industrial Court of Kenya
16 May 2014
RSRadido Stephen
1,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled it cannot hear claims by independent contractors, but transferred the builder's claim to a Magistrate's Court instead of dismissing it.

What this practically means

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Executive summary

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The Claimant sued the Respondents claiming Kshs 286,600/- under an alleged engagement of 17 March 2011 to build and supervise premises at Ukunda at a daily consideration of Kshs 1,200/-, contending that on the Respondents' return from abroad on 22 November 2011 they failed to pay the amount due. The Respondents denied an employment relationship, asserting the arrangement was a contract to build premises, and filed a preliminary objection on jurisdiction and on the grounds that the claim was bad in law and an abuse of process. The Respondents submitted the dispute was a contract for works, not a labour dispute, and relying on Adero v Ulinzi Sacco Society Ltd argued that a court without jurisdiction cannot transfer the claim to a competent court. The Court held that, on the pleadings and documents, the Claimant was an independent contractor performing specified construction tasks through the labour of others, and that the Industrial Court has no jurisdiction over contracts for works. However, the Court distinguished the Adero decision, noting the Industrial Court's constitutional mandate under Article 162(2) read with the Industrial Court Act, the evolving jurisprudence on its jurisdictional limits, and the constitutional imperative in Article 159(2)(d) to disregard procedural technicalities. Following the Court of Appeal's decision in Daniel N. Mugendi v Kenyatta University, the Court declined to strike out the Cause and ordered its transfer to the Resident Magistrate's Court in its civil jurisdiction, within whose pecuniary limits the claim fell, with the Deputy Registrar to forward the file and notice to the parties.

Key legal issues

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01

Whether the Claimant was an employee within the Industrial Court's jurisdiction

Holding

He was an independent contractor engaged under a contract for works, not a contract of service, so the Industrial Court lacks jurisdiction.

Reasoning

The Court applied statutory definitions and common law tests (organisation/integration and multiple/mixed factor tests) and its prior decisions. From the pleadings and documents, the Claimant was to perform specified construction tasks and was not obliged to do the work himself but through the labour of others, marking him as an independent contractor.

p. 2
02

Whether the Court could transfer the claim instead of striking it out

Holding

Yes. The Adero decision was distinguished and the Mugendi ratio followed, resulting in transfer to the Resident Magistrate's Court.

Reasoning

The Court distinguished Adero because the Industrial Court derives its mandate from Article 162(2) and section 12 of the Industrial Court Act; the jurisprudence on its jurisdictional limits is still evolving; and Article 159(2)(d) requires courts to administer justice without undue regard to procedural technicalities. It followed Mugendi, which endorsed transferring matters among courts of equal status.

p. 3

Legal principles established

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  • The distinguishing hallmarks of an independent contractor include working one's own hours, running one's own business, invoicing for services, and absence of PAYE deduction, leave and other employment benefits.
  • Where a court comes across a matter it lacks jurisdiction over, it should transfer the matter to the competent court rather than strike it out, following the Court of Appeal's endorsement of the USIU approach.

Court orders

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  1. 1.The Cause be transferred to the Resident Magistrate's Court in its civil jurisdiction for hearing and determination, the amount sought falling within its pecuniary jurisdiction
  2. 2.The Deputy Registrar to forward the file with requisite notice to the parties

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Industrial Court Actsection 12
  • Employment Actsection 2

Cases cited (8)

  • Adero & another v Ulinzi Sacco Society Ltd
    (2002) 2 KLR 577
  • United States International University (USIU) v the Attorney General
    (2012) eKLR, Nairobi High Court Petition No. 170 of 2012
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Cassidy v Min. of Health
    [1951] 2 KB 343
  • Ready Mixed Concrete v Min. of Pensions
    [1968] 2 QB 497
  • Mwalimu Kalimu Gamumu v Coastline Safaris Ltd & Others
    Mombasa Cause No. 31 of 2013
  • Kenya Hotels & Allied Workers Union v Alfajiri Villas (Magufa Ltd)
    Mombasa Cause No. 229 of 2013
  • Daniel N. Mugendi v Kenyatta University & 3 others
    (2013) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution as read with section 12 of the Industrial Court Act and the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Elijah Moranga v John Leinsly Irene Onderi [2014] KEELRC 995 (KLR)", Case Analysis (2014). Industrial Cause (Mombasa), filed 1 November 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/995/eng@2014-05-16

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