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ELRCDismissedMemorandum of Claim dated 30th July, 2015 (Cause)· [2016] KEELRC 351 (KLR)

Titus Ominde v Mediamax Network Ltd [2016] KEELRC 351 (KLR)

Employment and Labour Relations Court
14 November 2016
DMD.K. Njagi Marete
1,294 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 a retainer-based correspondent paid per news item was not an employee, so he could not claim unfair termination.

What this practically means

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Executive summary

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The claimant sued by Memorandum of Claim dated 30th July 2015 seeking compensation for unlawful, unprocedural and unfair termination of employment. He alleged he was employed as a Reporter from 1st August 2010 earning Kshs.10,000 and was terminated on 18th May 2015 without valid reason or fair procedure, contrary to Sections 35, 41, 43, 44 and 45 of the Employment Act. He sought notice pay, accrued leave, unpaid house allowance, service pay and 12 months' compensation totalling Kshs.285,500, plus a declaration, costs and interest. The respondent denied the claim, asserting the claimant was a radio correspondent on a retainer basis with its sister company Milele F.M., paid per news item delivered under a contract for service, and that the arrangement was discontinued on 18th May 2015 in accordance with its terms. The parties agreed on disposal by written submissions. The court framed four issues: whether the claimant was an employee; whether there was unfair termination; entitlement to relief; and costs. The court found that although there was some engagement between the parties, the terms were not overtly binding; the claimant served on a retainer basis paid per input upon agreed terms, so the relationship was not employment strictu sensu and was not terminable under the Employment Act. The termination followed the contract terms. The claim was accordingly dismissed on 14th November 2016, with each party ordered to bear their own costs.

Key legal issues

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01

Whether the claimant was an employee of the respondent

Holding

The claimant served on a retainer basis, paid per input upon agreed terms; the relationship was not a terminable employment relationship strictu sensu

Reasoning

The court considered the pleadings and submissions and noted that although there was some indicia of engagement, the terms were not overtly binding. The claimant was paid per item delivered under a retainer arrangement with a sister company arrangement, and the contract terms dictated the entire relationship. The court therefore concluded the arrangement fell short of employment in the strict sense of the word and law and could not be terminated in the manner contemplated by the Employment Act.

p. 4
02

Whether there was wrongful, unfair and unlawful termination

Holding

No, because there was no terminable employment relationship; the termination followed the terms of the contract

Reasoning

Having found the relationship contractual on a retainer basis rather than employment, the statutory protections of the Employment Act (Sections 35, 41, 43, 44, 45) on notice, procedure and valid reason did not apply. The discontinuation of services was done in accordance with the agreed terms, and the claimant could not sustain a claim of unfair termination under the Act. Consequently, the claimant was disentitled to all relief sought.

p. 4

Legal principles established

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  • Where terms and conditions of engagement are not overtly binding, payment being per output on agreed terms, the relationship does not amount to employment in the strict sense capable of unfair termination

Court orders

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  1. 1.Claim dismissed
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment ActSection 35(1)(c), 36, 41(1), 43, 44(4), 45(2), 28(1), 28(10), 51
  • Labour Institutions ActSection 15(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 and the Labour Institutions Act (claim for unfair termination)

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, "Titus Ominde v Mediamax Network Ltd [2016] KEELRC 351 (KLR)", Case Analysis (2016). Memorandum of Claim dated 30th July, 2015 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/351/eng@2016-11-14

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