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ELRCDismissedNot stated in judgment (filed 8.2.2016; related suit SRMCC No. 1624 of 2015)· [2018] KEELRC 2098 (KLR)

Musa Mzenga Musa v Jilao Company Ltd [2018] KEELRC 2098 (KLR)

Employment and Labour Relations Court
12 April 2018
OMOnesmus MakauLNLinnet Ndolo
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a piecework labourer hired through a gang leader was not an employee, so his unfair termination claim failed.

What this practically means

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Executive summary

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The Claimant sued on 8 February 2016 alleging that the Respondent had unfairly dismissed him on 22 October 2015, seeking Kshs.768,000 in terminal dues, compensation for unfair termination, a declaration of unfair dismissal and a certificate of service. The Respondent denied employing him, contending that he was part of a gang of labourers hired on need basis from Mr Eliud Maundu, an independent contractor. At trial, the Claimant testified that he was verbally employed in 2003, issued with a staff identity card, paid fluctuating daily wages, and dismissed after he sued the Respondent over injuries suffered on 14 June 2014. Mr Maundu, called as Rw1, testified that he led a gang of about 30 labourers, sourced piecework from various clients including the Respondent, negotiated pay, selected workers for each job and shared the earnings. The court framed three issues: whether a contract of service existed, whether it was unfairly terminated, and whether the reliefs should issue. Applying the definitions of contract of service, employee and piece work in section 2 of the Employment Act, the court found the Claimant was part of an organized gang offering piecework labour and that the Respondent was merely one of its clients. The court distinguished Kwekwe Mwakela & Others v Krystalline Salt Ltd, cited by the Claimant. Holding that section 45 did not apply to an independent contractor on piecework, the court declined all reliefs and dismissed the suit with no order as to costs on 12 April 2018.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondent

Holding

No contract of service was proved; the Claimant was a member of an organized gang offering piecework labour, hired occasionally by the Respondent as a client

Reasoning

The Claimant admitted that Rw1 was his gang leader and that his daily wage fluctuated between Kshs.1,500 and Kshs.1,000. Rw1 testified that he sourced jobs from clients, negotiated pay, picked gang members for each job and shared the pay. The court found the Claimant did not prove on a balance of probability that the Respondent employed him under a contract of service as defined in section 2 of the Employment Act.

p. 2
02

Whether the Claimant was unfairly terminated

Holding

The claim of unfair termination fails because section 45 of the Employment Act applies only to employees under a contract of service

Reasoning

Having found that the Claimant worked as an independent contractor on piecework basis rather than under a contract of service, the court held he was not capable of being unfairly terminated within the meaning of section 45 of the Employment Act, and the provisions anchoring the suit were inapplicable.

p. 2
03

Whether the reliefs sought should be granted

Holding

All reliefs were declined following the finding that no employment relationship existed

Reasoning

Since section 45 of the Employment Act was found inapplicable and no contract of service existed, the terminal dues, compensation for unfair termination, declaration and certificate of service could not issue. The suit was accordingly dismissed with no order as to costs.

p. 2

Legal principles established

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  • A gang labourer hired on piecework basis, whose pay fluctuates and who is under the command of a gang leader rather than the client, is not an employee of the client under a contract of service
  • A person not employed under a contract of service cannot be unfairly terminated within the meaning of section 45 of the Employment Act

Court orders

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  1. 1.The suit is dismissed with no order as to costs

Authorities

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Legislation

  • Employment ActSection 2 (definitions of contract of service, employee, piece work)
  • Employment ActSection 45

Cases cited (1)

  • Kwekwe Mwakela & Others vs Krystalline Salt Ltd
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (suit for unfair termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musa Mzenga Musa v Jilao Company Ltd [2018] KEELRC 2098 (KLR)", Case Analysis (2018). Not stated in judgment (filed 8.2.2016; related suit SRMCC No. 1624 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2098/eng@2018-04-12

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