Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedMemorandum of claim dated 21st September 2015, filed 22nd August 2015 (cause number not stated in judgment)· [2022] KEELRC 439 (KLR)

Beatrice O’mbaka Asienwa v Information Professionals Africa Limited & another [2022] KEELRC 439 (KLR)

Employment and Labour Relations Court
22 March 2022
JGJACOB GAKERI
4,942 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court dismissed a consultant's KSh 1.075 million claim because she couldn't prove she was actually an employee, not an independent contractor.

What this practically means

#

Executive summary

#
The Claimant, a self-described institutional capacity and human resource consultant, sued the 1st and 2nd Respondents alleging that they terminated her engagement as Administrative Support Manager on an ICT Authority Counties ICT Road Maps Development Project without notice, hearing or reason, in breach of Sections 17(1), 45(1) and 35(4) of the Employment Act, 2007 and Article 41 of the Constitution. She claimed Kshs.1,075,000/- (of a total consideration of Kshs.1,125,000/- at Kshs.37,500 per day for 30 days), a declaration that the termination was irregular and illegal, general damages, costs and interest. The Respondents denied an employment relationship, contending she was an independent consultant engaged under a contract for services, that she was paid Kshs.50,000/- ex gratia in full and final settlement, and raised a jurisdictional objection. The Respondents tendered no oral evidence. Framing two issues - whether there was a contract of service and whether the Claimant was entitled to the sum claimed - the court applied the Employment Act definitions and the established multi-factor tests (control, mutuality, integration). It found the Claimant had no letter of appointment, no salary, no leave or sick leave, reported to the office only once weekly, invoiced for work done, and on cross-examination confirmed she was a consultant. The terms of engagement were never formalised, and the 2nd Respondent's role was unexplained. The court held the Claimant failed to discharge the burden of proving a contract of service and dismissed the entire claim, with each party bearing their own costs. Judgment was delivered virtually at Nairobi on 22nd March 2022 under the COVID-19 directions.

Key legal issues

#
01

Whether the engagement was a contract of service or a contract for services

Holding

The Claimant was engaged as a consultant (independent contractor), not an employee; there was no contract of service with the 1st Respondent.

Reasoning

Applying the Employment Act definitions and the control/multi-factor tests (Ready Mixed Concrete; Clerk & Lindsell; Kenneth Kimani Mburu), the court noted the Claimant had no letter of appointment, no salary or wage, no leave or sick leave, reported to the office only once a week, billed by invoice for work done, was already self-employed elsewhere, and on cross-examination confirmed she was a consultant. Terms of engagement were never formalised.

p. 7
02

Whether the Claimant is entitled to the sums claimed

Holding

No; the claim fails because no employment relationship was established.

Reasoning

Having found no contract of service, the consequential claims for Kshs.1,075,000/-, declarations of irregular termination and general damages under Sections 17(1), 45(1) and 35(4) of the Employment Act and Article 41 of the Constitution could not stand. The role of the 2nd Respondent was also unexplained.

p. 7

Legal principles established

#
  • A claimant alleging a contract of service bears the burden of placing sufficient material before the court to establish employment within the meaning of Section 2(1) of the Employment Act, 2007.

Court orders

#
  1. 1.The claim is dismissed
  2. 2.Parties to bear their own costs

Authorities

#

Legislation

  • Employment Act, 2007Section 2 (contract of service; employee)
  • Employment Act, 2007Sections 17(1), 45(1), 35(4)
  • Employment Act, 2007Sections 4(2), 7, 9, 10(1)-(3)
  • Employment and Labour Relations Court Act, 2011Section 12
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (8)

  • Geoffrey Makana Asanyo v Nakuru Water and Sanitation Company and 6 Others
    [2015] eKLR
  • Gilbert Sule Otieno v Seventh Day Adventist Church (EA) Ltd (sued on behalf of S.D.A Church Kiamunyi East
    [2014] eKLR
  • Prof. Daniel N. Mugendi v Kenya University & 3 Others
    [2013] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Pietro Lunghi v Simba Hospitality Services Limited T/a Villa Rosa Kempinski
    Cause No. 906 of 2017
  • Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance
    (1968) 2QB 497
  • Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited
    [2014] eKLR
  • David Odwori Namuhisa v Magnate Ventures Limited
    [2017] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, 2011 (contested; Respondents objected to jurisdiction under the Employment Act, 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Beatrice O’mbaka Asienwa v Information Professionals Africa Limited & another [2022] KEELRC 439 (KLR)", Case Analysis (2022). Memorandum of claim dated 21st September 2015, filed 22nd August 2015 (cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/439/eng@2022-03-22

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