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ELRCDismissedNot stated in judgment· [2016] KEELRC 273 (KLR)

Joseph Otieno Ogutu & 24 others v Allied Wharfage Ltd & another [2016] KEELRC 273 (KLR)

Employment and Labour Relations Court
18 November 2016
OMO.N. Makau
3,809 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 warehouse workers were independent contractors, not employees, so they could not claim unfair dismissal benefits.

What this practically means

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Executive summary

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The claimants sued the first respondent (owner of warehouses at Changamwe and Shimanzi, Mombasa) and the second respondent (a labour outsourcing contractor), alleging they were employed as casual labourers from between 1994 and 2010 at a daily wage of Kshs.600, and that their services were unfairly terminated on 25.11.2010 without notice or valid reason. They sought one month's salary in lieu of notice, service pay, compensation for unfair termination and certificates of service. The first respondent denied employing them, asserting they were members of organized freelance gangs engaged on piece-rate terms, whose leaders recruited, supervised and paid them, and that from 16.3.2009 labour was outsourced to the second respondent. The second respondent denied ever employing the claimants, stating she sourced labour on piece-rate terms from self-help groups under a CBA. After hearing five claimant-side and defence witnesses, the court framed three issues: employment status, unfair termination, and reliefs. It held the claimants failed to prove employment on a balance of probability, finding instead that they were independent contractors doing piece work under organized freelance gangs responsible for recruitment, supervision, discipline and payment. Consequently it found no dismissal occurred, the contracts having lapsed on completion of the last task, and that the remedies sought were unavailable in law. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the claimants were employees or independent contractors

Holding

They were independent contractors engaged in piece work under organized gangs

Reasoning

The court applied the statutory definition of an employee under section 2 of the Employment Act and common-law indicia of employment. It found the claimants did not work full time, worked for other clients, were recruited, supervised, disciplined and paid by their gangs through gang leaders, and that their labour was outsourced piece work rather than part of the respondents' establishment.

p. 6
02

Whether the claimants were unfairly terminated

Holding

No dismissal occurred; the contracts lapsed on completion of the last contracted task

Reasoning

Having found the claimants were independent contractors, the court held they were incapable of being dismissed by the respondents. Their relationship ended when the final task was completed, so the alleged termination of 25.11.2010 had no legal foundation.

p. 6
03

Whether the claimed reliefs were available

Holding

The reliefs were unavailable to non-employees

Reasoning

Since the remedies sought (notice pay, service pay, compensation for unfair termination, certificate of service) are statutory remedies tied to a contract of service, and no such contract was proven, the court found the remedies not availed by law or contract.

p. 6

Legal principles established

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  • The onus of proving employment under a contract of service lies with the person who alleges that he was so employed
  • Labour supplied through organized freelance gangs who recruit, supervise, discipline and pay their own members on piece-rate terms constitutes independent contracting, not employment

Court orders

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

Authorities

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Legislation

  • Employment ActSection 2 (definition of employee)
  • Employment ActSection 2 (definition of piece work)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Joseph Otieno Ogutu & 24 others v Allied Wharfage Ltd & another [2016] KEELRC 273 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/273/eng@2016-11-18

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