Aisha Yakub Admani v Benard Odhiambo Okech [2022] KEELRC 495 (KLR)
The bottom line
#Kenya's Employment Court confirmed that a school headmistress who hired, controlled and paid staff is legally their employer, even if she didn't own the school.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employer-employee relationship between the appellant and the respondents
The appellant was the respondents' employer within the statutory definitions in section 2 of the Employment Act and the ELRC Act, as she employed them, set terms of service and paid salaries as agent/manager of the school
The evidence showed the appellant issued the respondents' letters of employment, instructed them and solely paid their monthly salaries. As Administrator and Headmistress she acted as agent or manager of the school, and 'employer' statutorily includes the agent, foreman, manager or factor. Her resignation without claiming terminal benefits suggested a special undisclosed equity in the enterprise, reinforcing that she was truly the employer rather than a mere co-employee.
Application of the control test absent a pleaded contract for service
The control test was available to the trial Court even though no contract for service was pleaded
The Court accepted the appellant's submission that the control test is usually invoked where a contract for service is alleged. However, it held there is no established principle making such a pleading a precondition; the test is simply a tool for determining whether a contract of service exists, to be applied against the pleadings and evidence.
Responsibility for third party proceedings
The appellant, having pleaded an intention to join the registered proprietors, was bound to issue third party notice herself; the respondents could not be faulted for not amending their claims
The appellant pleaded she would apply to join third parties but never did. A defendant claiming contribution or indemnity must take that step. The respondents consistently pleaded and testified that the appellant employed them and that they never knew the registered proprietors, so there was no obligation on them to substitute or add parties.
Whether the trial Court determined an issue not arising from the pleadings
The trial Court did not go beyond the pleadings and evidence
The pleadings squarely raised the question of who employed the respondents, and the evidence on who issued contracts, controlled work and paid salaries supported the trial Court's finding. The Court also invoked Article 159 to justify determining the dispute between the persons actually before it.
Legal principles established
#- On a first appeal the court re-evaluates the evidence and arrives at its own conclusions while remaining alert that it did not hear the evidence as the trial court did
- Pleading of a contract for service is not a precondition to invoking the control test to establish a contract of service
- A defendant who pleads an intention to enjoin third parties must take out third party notice; it is not for claimants to substitute or add the proper defendants
- A court may determine the dispute between the persons actually before it under the overriding objective, even where the defendant was not the registered proprietor
Court orders
#- 1.The final orders in the trial Court's judgment and the decree flowing therefrom are hereby upheld
- 2.The appellant to pay the respondents' costs of the appeal
- On appeal from
- Magistrates' Court
- Not stated in extract
- Jurisdiction invoked
- First appeal from the magistrates' court; Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aisha Yakub Admani v Benard Odhiambo Okech [2022] KEELRC 495 (KLR)", Case Analysis (2022). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/495/eng@2022-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.