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ELRCPartially AllowedCause No 697 of 2018· [2021] KEELRC 1835 (KLR)

Esther Auma Ongola v And Beyond (K) Limited [2021] KEELRC 1835 (KLR)

Employment and Labour Relations Court
16 April 2021
MOMaureen Onyango
3,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court held a masseuse became an independent contractor after her 2009 agreement, so most Employment Act benefits and unfair termination claims failed.

What this practically means

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Executive summary

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The Claimant, a masseuse engaged at the Respondent's Kichwa Tembo Tented Camp, sued alleging unlawful and unfair termination on 12th May 2015 and claimed Kshs.31,004,450.60, a declaration that her termination was unfair, a certificate of service, costs and interest. She relied on Article 41 of the Constitution and various provisions of the Employment Act, asserting unpaid leave, house allowance, service pay, salary arrears, commission and overtime. The Respondent admitted employment only from 1st January 2007 to 30th June 2009, contending that operational restructuring led to an independent contractor agreement of 2nd July 2009 under which the Claimant offered massage services on 40% commission, subject to 5% withholding tax, with no PAYE or statutory benefits, and that she left the camp on her own volition on 12th May 2015. The dispute was disposed of by witness affidavits and written submissions. The court framed two issues: the nature of the contract and entitlement to reliefs. It held the Claimant was an employee only from 1st January 2007 to 30th June 2009, whose dues were fully paid per the terminal dues schedule of 19th July 2009; thereafter she was an independent contractor not covered by the Employment Act. Only the certificate of service for the employment period succeeded; the rest of the claim was dismissed with costs to the Respondent. Judgment was delivered virtually on 16th April 2021 under the COVID-19 directives.

Key legal issues

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01

Whether the Claimant was under a contract of service or a contract for service.

Holding

The Claimant was an employee from 1st January 2007 to 30th June 2009; the agreement of 2nd July 2009 converted the engagement into an independent contractor relationship.

Reasoning

The court examined the employment contract of 1st January 2007, confirmation letter, payslips, job identity card, NHIF and insurance cards evidencing employment until June 2009, and the payment schedule of terminal dues dated 19th July 2009. It contrasted these with the 2nd July 2009 agreement stating the Claimant would be regarded as an external person, and payment thereafter by commission on invoices rather than wages, concluding the contract changed to a contract for service.

p. 4
02

Whether the Claimant is entitled to the reliefs sought.

Holding

Only the certificate of service for the employment period succeeds; all monetary claims fail.

Reasoning

Since the Claimant was not an employee after June 2009, the statutory protections relied on (Sections 28, 36, 43, 45, 49 and 51 of the Employment Act) did not apply to the post-2009 period. The employment period ended with payment of all terminal dues itemised in the schedule dated 19th July 2009, leaving no entitlement to notice pay, leave, house allowance, service pay, salary arrears, compensation or overtime.

p. 4

Legal principles established

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  • A worker whose engagement is compensated by commission, who invoices for services and organises her own leave, is an independent contractor and does not enjoy benefits under the Employment Act.

Court orders

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  1. 1.The Respondent to issue the Claimant a certificate of service for the period 1st January 2007 to June 2009.
  2. 2.The Claimant's claim, other than the certificate of service, is dismissed with costs to the Respondent.

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Employment ActSections 2, 17, 28, 31, 35, 36, 40, 41, 43, 45, 49, 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Fred A. Odhiambo v The Honourable Attorney General & Another
    Nairobi ELRC Cause No. 312 of 2010 eKLR (2018)
  • Christine Adot Lopeiyio v Wycliffe Mwathi Pere
    (2013) eKLR
  • Fredrick Byakika v Mutiso Menzens International unlimited
    (2016) eKLR
  • Joseph Nyagah v United Millers Limited
    (2019) eKLR
  • Paul Ochieng' Agola v Gateway Marine Services Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under Article 41 of the Constitution and the Employment Act

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, "Esther Auma Ongola v And Beyond (K) Limited [2021] KEELRC 1835 (KLR)", Case Analysis (2021). Cause No 697 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1835/eng@2021-04-16

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