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ELRCStruck OutNot stated in judgment· [2022] KEELRC 1650 (KLR)

Aseda v Mesh Plus Plus Limited (Cause E736 of 2021) [2022] KEELRC 1650 (KLR)

Employment and Labour Relations Court
10 May 2022
JGJacob Gakeri
2,783 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant sued the respondent alleging unfair and wrongful termination of a consultancy engagement. He was engaged on March 22, 2021 as a Consultant Network Engineer for six months at USD 1,600 per month under a contract titled 'contract for provision of consultancy services', and claimed compensation under the Employment Act totalling Kshs 1,334,880. The respondent filed a reply and a preliminary objection dated October 6, 2021, contending that the court lacked jurisdiction because no employment relationship existed, the claimant being an independent consultant. The objection was unopposed, the claimant having neither filed a response nor submissions despite being accorded seven days effective February 15, 2022. The court framed two issues: whether the objection met the Mukisa Biscuits threshold, and whether the court had jurisdiction. Relying on the parties' written contract, the court found the claimant was expressly described as a consultant, had no fixed reporting hours, was paid a consultancy fee subject only to 5% withholding tax, was free to serve other clients, and clause 8.1 expressly disclaimed any employer/employee relationship. Citing the principle that courts cannot rewrite contracts freely entered into, and the hallmarks of an independent contractor, the court held there was no employment relationship. Consequently, the dispute fell outside section 12(1) of the Employment and Labour Relations Court Act, the court had no jurisdiction and downed its tools. The preliminary objection was upheld, the suit struck out, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

An objection to jurisdiction is a pure point of law and satisfies the threshold for a preliminary objection

Reasoning

The court applied the classic test in Mukisa Biscuits Manufacturing Co Ltd v West End Distribution Ltd, which defines a preliminary objection as a point of law pleaded or arising clearly from the pleadings which, if argued as a preliminary point, may dispose of the suit. Since jurisdiction is a question of law, the objection met the test.

p. 3
02

Whether an employer/employee relationship existed between the parties

Holding

No employment relationship existed; the contract was one for consultancy services and the claimant was an independent contractor

Reasoning

Applying the contract's terms and the hallmarks of an independent contractor (registered taxpayer, own hours, freedom to work for others, no employment benefits), and noting clause 8.1 expressly disclaiming an employer/employee relationship, the court found the parties entered a consultancy, not an employment, contract. The claimant himself pleaded engagement as a consultant.

p. 5
03

Whether the ELRC had jurisdiction over the dispute

Holding

The court had no jurisdiction because the dispute did not arise out of employment

Reasoning

Section 12(1) of the Employment and Labour Relations Court Act confers exclusive jurisdiction over disputes arising out of employment. Having found no employer/employee relationship, the dispute fell outside that catalogue, and a court without jurisdiction must down its tools.

p. 6

Legal principles established

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  • Jurisdiction is everything; a court must down tools once it finds it has no jurisdiction
  • Where parties reduce their relationship into a written contract, the court gives effect to its terms and cannot rewrite the contract

Court orders

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  1. 1.The preliminary objection is upheld and the suit is struck out
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 2
  • Employment and Labour Relations Court Actsection 4
  • Employment and Labour Relations Court Actsection 12(1)
  • Constitution of Kenya, 2010Article 162(2) and 162(3)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (10)

  • Kenya Hotels and Allied Workers Union v Alfajiri Villas (Magufa Ltd)
    [2014] eKLR
  • Elizabeth Awuor Otieno v Core Construction Ltd
    [2021] eKLR
  • Vitalis Oliewo K'omudho v AAR Health Services Ltd
    [2016] eKLR
  • National Water Conservation & Pipeline Corporation v Jayne Kanini Mwanza
    [2014] eKLR
  • National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another
    [2001] eKLR
  • Mukisa Biscuits Manufacturing Co Ltd v West End Distribution Ltd
    [1969] EA 696
  • Owners of the Motor Vessel "Lillian S." v Caltex Oil Kenya Ltd
    [1989] eKLR
  • Maurice Oduor Okech v Chequered Flag Limited
    [2013] eKLR
  • Fredrick Byakika v Mutiso Menezes International Unlimited
    [2016] eKLR
  • Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and section 12(1) of the Employment and Labour Relations Court Act, 2011

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, "Aseda v Mesh Plus Plus Limited (Cause E736 of 2021) [2022] KEELRC 1650 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1650/eng@2022-05-10

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