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ELRCDismissedCause No. 107 of 2016· [2019] KEELRC 1706 (KLR)

Ibrahim Omwaya Oyuka v Timsales Limited [2019] KEELRC 1706 (KLR)

Employment and Labour Relations Court of Kenya
25 April 2019
MMM. Mbaru
949 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 the claimant was an independent contractor, not an employee, so his unfair dismissal claims failed.

What this practically means

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Executive summary

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The claimant sued Timsales Limited before the Employment and Labour Relations Court at Nakuru, alleging he was employed as a carpenter from 4th October 2001 to 18th February 2015, paid per piece upon inspection and verification of finished doors, windows and prefabricated house panels. He claimed that shortly before his dismissal he was allocated cleaning duties outside his contract, and that when he sought clarification his engagement was terminated without notice on 18th February 2015. He sought notice pay, damages for unprocedural termination and payment of NSSF and NHIF contributions. The respondent's defence was that the claimant was an independent contractor under a contract for services, that the contract was not renewed due to low volume of work, and that no terminal dues were owed; it called no witness. The court found the claimant paid per completed job, upon verification and approval, with no statutory deductions, owning his own tools which he carried away at the end of the engagement. Relying on the cited authorities distinguishing employees from independent contractors, the court held the claimant was an independent contractor under a contract for services. Consequently, without an employment relationship, the suit could not be sustained before the employment court. The claims were dismissed in their entirety with each party bearing their own costs.

Key legal issues

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01

Whether the claimant was an employee or an independent contractor

Holding

The claimant was an independent contractor under a contract for services, not an employee

Reasoning

The claimant was paid per completed piece of work, subject to inspection and verification by the respondent's management. He owned his own work tools, which he carried away when the engagement ended. There were no statutory deductions (NSSF/NHIF) and payments were not constant. The court applied the tests distinguishing employee from independent contractor drawn from the cited authorities.

p. 2
02

Whether the court has jurisdiction over the dispute

Holding

Without an employment relationship, the suit cannot be sustained before the Employment and Labour Relations Court; the claimant is not before the appropriate court

Reasoning

Having found the claimant to be an independent contractor, the court held that any dispute arising from the contract for services lies outside the employment court. The dismissal of the claim follows from the want of an employment relationship, notwithstanding that the respondent did not call a witness.

p. 2

Legal principles established

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  • Payment per completed piece, upon verification and approval of finished products, together with absence of statutory deductions, distinguishes a contract for services from an employment relationship

Court orders

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  1. 1.The claims made are found without merit and dismissed in their entirety
  2. 2.Each party shall bear own costs

Authorities

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Cases cited (4)

  • Kenneth Kimani Mburu & Another v Kibe Muigai Holdings Limited
    [2014] eKLR
  • Maurice Oduor Okech v Chequered Flag Limited
    [2013] eKLR
  • Kenya Hotels & Allied Workers Union v Alfajiri Villas (Magufa) Ltd
    [2014] eKLR
  • Joseph Nyaga v United Millers Limited
    Cause No. 267 of 2015 (Nakuru)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under employment disputes; the court found the claimant was not an employee and the claim could not be sustained before it

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, "Ibrahim Omwaya Oyuka v Timsales Limited [2019] KEELRC 1706 (KLR)", Case Analysis (2019). Cause No. 107 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1706/eng@2019-04-25

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