Miriam Nzilani Mweu v Kiptiness & Odhiambo Associates [2020] KEELRC 1005 (KLR)
The bottom line
#Kenya's Employment Court ruled that a law firm 'partner' sharing in profits is not an employee, so employment courts cannot hear her discrimination and commission claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner, admitted as a Fixed Remuneration Partner, was an employee within the jurisdiction of the ELRC
She was a partner, not an employee; her entitlement to share in the firm's income profits made her a partner, and she was in fact an employer under the partnership statutes
The Court found the initial engagement as Associate was a contract of service, but the admission as Fixed Remuneration Partner with entitlement to 7.5% of practice group revenues and commissions demonstrated profit-sharing characteristic of partnership. Section 8(2) of the Partnerships Act, 2012 prohibits a partnership from employing a partner as an employee. Foreign authorities turned on particular statutes and were not determinative of the domestic framework. The jurisdictional finding disposes of the Petition.
Whether the ELRC has jurisdiction over a dispute on distribution of partnership revenue/commissions
It does not; statutory law does not confer such jurisdiction
The Court held that the gravamen of the Petitioner's case, apart from constitutional allegations, concerned her share of revenues and commissions from the partnership. Even if she were held to be an employee, the constitutional claims could not be severed from the partnership revenue claims. The ELRC's jurisdiction is confined to employment and labour relations as defined by the Employment Act and the ELRC Act, and partnership revenue distribution falls outside it.
Weight of foreign authorities on status of salaried partners
Foreign decisions turned on particular statutes and were not particularly determinative of the domestic framework
The Court considered the UK Employment Appeal Tribunal decision in Williamson & Soden Solicitors v Briars, the US Supreme Court's six-factor test in Clackamas Gastroenterology Associates v Wells, and Clyde & Co LLP v Bates van Winklehof, but noted each turned on foreign statutory definitions (Employment Rights Act 1996, Employment Equity Act provisions). The Court instead applied the domestic statutory framework under the Partnerships Act, 2012 and the Limited Liability Partnerships Act, 2011.
Legal principles established
#- Section 8(2) of the Partnerships Act, 2012 bars a partnership from employing a partner as an employee of the firm
- A partner in a law firm entitled to a share in the income profits of the firm is not an employee for purposes of the Employment Act, 2007, and the ELRC lacks jurisdiction over such disputes
Court orders
#- 1.The Petition is struck out
- 2.No order on costs
- Jurisdiction invoked
- Article 162(2) of the Constitution as read with section 2 of the Employment Act, 2007 and section 2 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miriam Nzilani Mweu v Kiptiness & Odhiambo Associates [2020] KEELRC 1005 (KLR)", Case Analysis (2020). Petition (ELRC, Nairobi) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1005/eng@2020-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.