Chrismer Express Limited & another v Killmall International Limited (Cause 385A of 2017) [2023] KEELRC 227 (KLR)
The bottom line
#Kenya's Employment Court ruled that companies cannot be employees, so Kilimall owed its contracted delivery firms nothing when the deals ended.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were engaged on a contract of service or a contract for service
The claimants were independent contractors on contracts for service, not employees
The Drop Shipping Service Contracts expressly stated the parties' relationship was that of independent contractor and lacked ordinary employment clauses (remuneration, hours, leave, discipline). The Employment Act's definition of 'employee' cannot apply to artificial persons. The claimants invoiced for services, were paid a consolidated contract fee rather than salary, and provided their own tools (motorbikes and riders), all hallmarks of a contract for service.
Whether the Court could infer an employment relationship notwithstanding the express independent-contractor clause
No - parties are bound by the express terms of their contracts and the Court will not rewrite them
Relying on Pius Kimaiyo Langat vs Co-operative Bank of Kenya Ltd, the Court held that parties are bound by their contract unless coercion, fraud or undue influence are pleaded and proved. The claimants executed the contracts as independent contractors and the intention of the parties was clear from the express terms. Any employment relationship was more probable between the respondent and the riders (secondees), not the claimants.
Consequence of the finding on the Court's jurisdiction
Having found no employment relationship, the dispute fell outside the ELRC's jurisdiction and the remaining issues could not be determined
The Court reasoned logically from its finding: since the claimants were not employees, the claims of unfair and unlawful termination under the Employment Act had no foundation, and the dispute did not fall within the Court's statutory mandate. The other issues (unfair termination and entitlement to reliefs) were therefore not reached.
Legal principles established
#- An artificial person (a company or business name) cannot be an 'employee' under the Employment Act; the Act contemplates natural persons as employees
- Courts are bound by the express terms of parties' contracts and will not rewrite them
- Whether a relationship is one of employment is determined by the substance of the arrangement - control, payment of salary, provision of tools - not merely the contract's label; invoices, consolidated contract fees and provision of own tools point to a contract for service
Court orders
#- 1.Both claims, ELRC Cause Nos. 385A of 2017 and 385B of 2017, dismissed in their entirety
- 2.No orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act; Employment Act, Labour Institutions Act (jurisdiction contested by respondent's preliminary objection)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Moranga v Seluk Investments Limited (Cause E705 of 2020) [2025] KEELRC 1265 (KLR)[2025] KEELRC 1265 (KLR)30 Apr 2025followed
Cite this brief
#Cite this brief
Caselaw, "Chrismer Express Limited & another v Killmall International Limited (Cause 385A of 2017) [2023] KEELRC 227 (KLR)", Case Analysis (2023). ELRC Cause Nos. 385A of 2017 and 385B of 2017 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/227/eng@2023-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.