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ELRCDismissedNot stated in the judgment· [2019] KEELRC 2141 (KLR)

Ibrahim Ulalo v Nation Media Group [2019] KEELRC 2141 (KLR)

Employment and Labour Relations Court
22 February 2019
MOMAUREEN ONYANGO
1,287 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 disputing whether an employment relationship existed requires a full hearing with evidence, not a shortcut dismissal.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection dated 27th March 2018 arguing that the Employment and Labour Relations Court lacked jurisdiction over the Claimant's Memorandum of Claim because no employer-employee relationship existed between the parties. The Claimant alleged he was employed as a Freelance Sales Executive from 2010 to 27th July 2017, while the Respondent produced a letter dated 24th March 2010, signed by the Claimant, expressly engaging him as an independent contractor and stating it was not an offer of employment. The Respondent submitted that contracts are binding and relied on authority that documentation and mode of payment are critical in distinguishing a contract for services from a contract of service. The Claimant countered that jurisdiction flowed from section 12 of the Employment and Labour Relations Court Act and Article 162(2) of the Constitution, that the existence of an employment relationship was a matter for trial, and that the objection failed the Mukisa Biscuits threshold of a pure point of law. The Court, per Maureen Onyango J, held that a preliminary objection cannot be raised where facts must be ascertained; the nature of the contractual relationship was contested and required evidence at the hearing, and the traditional control and integration tests were no longer conclusive. The preliminary objection was dismissed with no orders as to costs, with the substantive question of the employment relationship left for determination at trial.

Key legal issues

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01

Whether absence of an employer-employee relationship is a pure point of law suitable for a preliminary objection

Holding

No - the existence of an employment relationship is contested on facts and contract interpretation, requiring evidence at the hearing.

Reasoning

The Court applied Mukisa Biscuits: a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct. Here the Claimant alleges an employment contract while the Respondent avers the contract engaged him as an independent contractor. Determining which interpretation is correct requires evidence of the nature of the relationship; an employment relationship can even be a matter of presumption based on the facts. The objection therefore fails.

p. 2
02

The proper test for distinguishing a contract of service from a contract for services

Holding

The traditional control and integration tests are no longer conclusive; documentation and mode of payment are critical and the court must interpret the contested contract.

Reasoning

Relying on Maurice Oduor Okech v Chequered Flag Limited, the Court endorsed Ndolo J's approach that the fundamental behaviour of the parties, including the form of documentation and mode of payment, is critical in determining whether a relationship is a contract for services or of service. Where the nature of the relationship is contested, the court must interpret the contract with the aid of evidence.

p. 2

Legal principles established

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  • A preliminary objection cannot be raised where facts are contested and must be ascertained; it is suitable only for a pure point of law.
  • The traditional control and integration tests of employment are no longer conclusive; the court must consider evidence of the nature of the parties' relationship.

Court orders

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  1. 1.The preliminary objection fails and is accordingly dismissed with no orders as to costs

Authorities

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Legislation

  • Employment Actsection 2
  • Employment and Labour Relations Court Actsection 12
  • Constitution of Kenya 2010Article 162(2)

Cases cited (6)

  • Liverpool City Council Vs Irwin
    (1977) A.C. 239
  • Everret Aviation Limited –v- Kenya Revenue Authority
    (2013) eKLR
  • Maurice Oduor Okech –V- Chequered Flag Limited
    (2013) eKLR
  • James Heather – Hayes –V- African Medical Research Foundation (AMREF)
    (2014) eKLR
  • Mukisa Biscuits Manufacturing Company Vs. West End Distributors
    (1969) E.A 696
  • Banco Arabe Espanol Vs Bank of Uganda
    (1999) 2EA 22
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Article 162(2) of the Constitution of Kenya 2010 (invoked by the Claimant)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Ibrahim Ulalo v Nation Media Group [2019] KEELRC 2141 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2141/eng@2019-02-22

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