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ELRCDismissedCause No 2347 of 2012· [2015] KEELRC 722 (KLR)

George Kamau Ndiritu & another v Intercontinental Hotel [2015] KEELRC 722 (KLR)

Employment and Labour Relations Court
29 July 2015
LNLinnet Ndolo
1,284 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled the claimants were independent contractors, not employees, so their claim for employment benefits failed.

What this practically means

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Executive summary

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Two claimants, employed as cleaners allegedly from 20th February 1990, sued Intercontinental Hotel for six months' pay in lieu of notice, severance pay at 15 days per year worked, unpaid leave for 22 years, certificates of service, costs and interest. They claimed that in February 2010 they were demoted to casual status on daily pay and that their services were terminated on 4th July 2012 without their entitlements. The Respondent denied a continuing contract of service, asserting the 1990 letter was a one-year cleaning contract and that the Claimants were thereafter engaged as casuals as needed, producing application forms dated December 2009. The court framed two issues: whether an enforceable employment relationship existed, and whether the remedies were due. Reproducing the 1990 contract letter in full, the court noted the supervision by the Regional Chief Engineer and the integral nature of the work, but held that the traditional control and integration tests are no longer conclusive. Decisive factors were that the Claimants worked no more than eight days a month, were paid by voucher on invoicing, and no individual employment contracts were issued. The court found the Claimants were independent contractors, from whom no employee benefits are owed, and held it lacked jurisdiction over independent contractor claims. The entire claim was dismissed with no order for costs.

Key legal issues

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01

Whether an employment relationship existed between the Claimants and the Respondent

Holding

No employment relationship existed; the Claimants were independent contractors

Reasoning

The Court considered the letter of 20th February 1990, supervision by the Regional Chief Engineer and the integral nature of the work, which pointed towards employment. However, the Claimants worked no more than eight days per month, were paid by voucher upon invoice, and no individual employment contracts were issued. The documentation and mode of payment indicated an independent contractor arrangement.

p. 3
02

Whether the Court had jurisdiction to entertain the claim

Holding

The Court has no jurisdiction over claims arising from an independent contractor's engagement

Reasoning

Having found the Claimants to be independent contractors, the Court held that it could not entertain claims for employment benefits such as notice pay, severance and leave, following Maraga J in John Charo v Christopher Njao.

p. 4

Legal principles established

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  • The traditional tests of control and integration are no longer conclusive in determining whether a relationship is a contract for services or a contract of service; the form of documentation and mode of payment are critical
  • An independent contractor is not entitled to benefits ordinarily available to employees, and the Employment and Labour Relations Court has no jurisdiction over independent contractor claims

Court orders

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  1. 1.The Claimants' entire claim fails and is dismissed
  2. 2.No order for costs

Authorities

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Legislation

  • Employment ActSection 2

Cases cited (3)

  • Mwalimu Kalimu Gamumu & 35 Others v Coastline Safaris Limited & 2 Others
    [2013] eKLR
  • Everret Aviation Limited Vs the Kenya Revenue Authority
    [2013] eKLR
  • John Charo Vs Christopher Njao
    [2005] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; court found it lacked jurisdiction over independent contractors

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "George Kamau Ndiritu & another v Intercontinental Hotel [2015] KEELRC 722 (KLR)", Case Analysis (2015). Cause No 2347 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/722/eng@2015-07-29

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