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ELRCDismissedCause 1943 of 2014· [2019] KEELRC 500 (KLR)

Geoffrey Kaimenyi Mathiu v Nicholas Gitobu Gitonga & another [2019] KEELRC 500 (KLR)

Employment and Labour Relations Court
2 October 2019
HWHellen S. Wasilwa
3,595 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that being paid for errands over many years does not automatically make you an employee entitled to unfair dismissal protections.

What this practically means

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Executive summary

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The Claimant sued the two Respondents in the Employment and Labour Relations Court at Nairobi claiming he was orally employed by them from 1998 as a domestic worker, night guard and later caretaker of their Zimmerman plot, working approximately 17 hours daily for 15 years without leave, and that his services were terminated by a letter dated 28/03/2014 through their advocates. He sought a declaration that the dismissal was unlawful, unpaid March 2014 salary, payment in lieu of notice, unpaid leave, service pay, overtime, 12 months' damages for unfair dismissal, a Certificate of Service, an order referring the matter to the DPP under section 51(3) of the Employment Act, interest and costs, totalling over Kshs. 6.9 million. The Respondents denied the employment relationship, asserting he ran errands for payment, ran his own businesses (Geoffka Enterprises, a housegirls bureau and auctioneering work), was given accommodation on humanitarian grounds, and vacated the premises when they issued notices to renovate. The court framed three issues: whether an employment relationship existed; if so, whether termination was unlawful; and entitlement to remedies. Applying the control, integration, economic reality and mutuality of obligation tests from Charles Juma Oleng v M/S Auto Garage Ltd and ILO Recommendation 198 indicators, the court found the Claimant was not under continuous instructions, was not periodically remunerated and was not supplied tools, and that the relationship fell short of employment. The claim was dismissed. The remaining issues were not determined.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondents

Holding

No employment relationship existed; the relationship fell short of employer and employee

Reasoning

The court applied the control, integration, economic reality and mutuality of obligation tests from case law and ILO Recommendation 198 indicators. The Claimant ran errands for the Respondents and was paid per errand, simultaneously ran his own businesses (Geoffka Enterprises, a housegirls bureau, and auctioneering work), was not under continuous instructions, was not periodically remunerated, and was not supplied with tools. His evidence (utility bills, Mpesa transfers, a Chief's letter post-termination) did not establish employment.

p. 5
02

Whether the Claimant was unlawfully terminated and entitled to remedies

Holding

Not determined; rendered unnecessary by the finding of no employment relationship

Reasoning

Having found that no employment relationship existed, the court held it unnecessary to determine whether the termination was unlawful or what remedies were due, since the statutory protections of the Employment Act apply only to employees.

p. 5

Legal principles established

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  • There is no single test for determining an employment relationship; all relevant factors must be balanced, including control, integration, method of payment, obligations, and who bears risk of loss and chance of profit
  • A worker who is not under continuous instructions, is free to do other work of his own choice, is not periodically remunerated and is not provided with tools does not fall within an employer-employee relationship

Court orders

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  1. 1.The claim by the Claimant is dismissed with no orders as to costs (implied by dismissal; the judgment makes no express costs award).

Authorities

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Legislation

  • Employment ActSections 8, 9, 10(1), 12, 28(1)(a), 31(1), 41, 43, 45(5)(a), 51(3)
  • Civil Procedure ActSection 27
  • ILO Recommendation 198Part II, Article 13

Cases cited (6)

  • Martin Ireri Irungu v Olerai Management Company
    [2017] eKLR
  • Gilbert Sule Otieno v Seventh Day Adventist Church (East Africa) Ltd (sued on behalf of SDA Church, Kiamunyi East)
    [2014] eKLR
  • Maurice Oduor Okech v Chequered Flag Limited
    [2013]
  • Lorna Adhiambo Aling v Safi International AS
    [2017] eKLR
  • Charles Juma Oleng v M/S Auto Garage Ltd & another
    [2014] eKLR
  • Kenya Engineering Workers Union v Abyssinia Iron and Steel Limited & Jakali Handling Limited
    (2004) eKLR
Jurisdiction invoked
Jurisdiction as the Employment and Labour Relations Court under the Employment and Labour Relations Court Act over a claim for unlawful and unfair dismissal and terminal benefits

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, "Geoffrey Kaimenyi Mathiu v Nicholas Gitobu Gitonga & another [2019] KEELRC 500 (KLR)", Case Analysis (2019). Cause 1943 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/500/eng@2019-11-06

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