Lydia Limbe v Akili Dada [2022] KEELRC 951 (KLR)

Applying the control and integration tests, the court noted the Claimant reported daily to the office, used the Respondent's equipment and email system, attended staff meetings and activities, was introduced as 'our newest staff member', worked specified hours under the Executive Director's supervision and was issued a staff exit questionnaire. Her communications role was integral and critical to the Respondent's business. Withholding tax treatment was not determinative.

The employer led no evidence of any performance appraisal system or evaluation against deliverables, and the complaints about interpersonal skills were not evidenced, quantified or shown to have been raised with the Claimant for remedial action. Incompatibility requires persistent and irrational inability to work with workmates, which was not established. The burden under Section 43(1) was not discharged.

There was no notice to show cause, no prior evaluation shared with the Claimant, no minutes of any hearing, and no opportunity to be accompanied or to make representations. The Claimant's uncontroverted evidence was that she was simply handed a termination letter at a meeting without prior notice of its agenda.

The illegality argument based on 5% withholding tax and non-remittance of statutory deductions was not elucidated. The Kenya Airways v Satwant Singh Flora principles were distinguished because the Respondent never pleaded illegality of the contract nor demonstrated under what law it was illegal.