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ELRCDismissedNot stated in judgment (Memorandum of Claim filed 30th May 2017)· [2019] KEELRC 2164 (KLR)

Zipporah Gathuya v Registered Trustees of Gertrude’s Garden t/a Gertrude Children’s Hospital [2019] KEELRC 2164 (KLR)

Employment and Labour Relations Court
22 February 2019
MOMaureen Onyango
1,698 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that calling a worker a 'consultant' in a contract doesn't decide the matter — courts examine the real working relationship to determine employment.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection on 5th February 2018 opposing the Claimant's Memorandum of Claim filed on 30th May 2017, contending that the Employment and Labour Relations Court lacked jurisdiction because the Claimant, engaged under a Service Contract Agreement dated 14th May 2007 as a Consultant Paediatric Anaesthetist, was a consultant and not an employee, and that the dispute was a commercial civil contract matter for the High Court or Chief Magistrates Commercial Court. The Claimant responded that the objection raised issues of fact rather than law, and that she worked under the Respondent's direction, used its equipment, managed the anaesthesia department and was paid from fees the Respondent collected from patients. The Respondent relied on Starsky Limited v Five Forty Africa Limited; the Claimant relied on Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors, Nick Githinji Ndichu, Maurice Oduor Okech v Chequered Flag Limited and Stanley Mungai Muchai. The court, Maureen Onyango J, held that the objection was not a proper preliminary objection because it depended on disputed facts, and that the existence of an employment relationship must be determined by examining the substance of the engagement rather than the label used. The contract showed a fixed salary, fixed hours, supervision, subjection to the Respondent's Code of Conduct and appraisal system, and termination by one month's notice under Section 35 of the Employment Act. Applying the multi-factor tests in Kenneth Kimani Mburu and Everret Aviation Limited, the court agreed with the Claimant that jurisdiction could not be resolved at the preliminary stage. The preliminary objection was dismissed with no orders as to costs on 22nd February 2019 at Nairobi.

Key legal issues

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01

Whether the Preliminary Objection was a proper point of law

Holding

It was not; whether a contract of service exists is a substantive issue of law and fact requiring evidence

Reasoning

Relying on Mukhisa Biscuit and Stanley Mungai Muchai, the court held that a question whether a contract of service exists is not a preliminary issue because it depends on facts not admitted by both sides. The mere label of 'consultant' in the contract was insufficient without a factual inquiry into the terms of the engagement.

p. 2
02

Whether the Claimant was an employee or an independent consultant

Holding

The substance of the contract indicated an employment relationship; the label of consultant alone cannot determine the nature of the engagement

Reasoning

The court considered the terms of the contract: the Claimant was on a fixed salary, worked hours fixed by the Respondent under its supervision, was subject to its Code of Conduct and performance appraisal system, and the contract provided for termination by one month's notice under Section 35 of the Employment Act. Applying the integration and multi-factor tests, the roles were integral to the Respondent's business rather than peripheral.

p. 3

Legal principles established

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  • A preliminary objection that requires determination of disputed facts is not a proper preliminary objection on a point of law
  • In determining the existence of an employment relationship, the court must look beyond the label used by the parties and examine the substance of the relationship

Court orders

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  1. 1.The Preliminary Objection is dismissed with no orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(1)
  • Constitution of Kenya, 2010Article 162(2)(c)
  • Employment ActSection 2
  • Employment ActSection 35
  • Employment ActSection 49
  • Employment ActPart XI

Cases cited (10)

  • Starsky Limited v Five Forty Africa Limited & Don Smith
    ELRC Cause 606 of 2016
  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969) EA
    (1969) EA
  • Nick Githinji Ndichu v Clerk, Kiambu County Assembly & Another
    [2014] eKLR
  • Maurice Oduor Okech v Chequered Flag Limited
    [2013] eKLR
  • Stanley Mungai Muchai v National Oil Corporation of Kenya
    [2012] eKLR
  • Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited
    [2014] eKLR
  • Everret Aviation Limited v Kenya Revenue Authority (Through The Commissioner of Domestic Taxes)
    [2013] eKLR
  • Beloff vs Preddram Limited
    [1973] ALL ER 241
  • Simmons Vs Heath Laundry Company
    [1910] 1 KB 543
  • O' Kelly Vs Trusthouse Forte
    [1983] 3 ALL ER 456
Jurisdiction invoked
Article 162(2) of the Constitution; Employment and Labour Relations Court Act, 2014, Section 12(1)

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, "Zipporah Gathuya v Registered Trustees of Gertrude’s Garden t/a Gertrude Children’s Hospital [2019] KEELRC 2164 (KLR)", Case Analysis (2019). Not stated in judgment (Memorandum of Claim filed 30th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2164/eng@2019-02-22

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