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ELRCDismissedELRC Cause Nos. 385A of 2017 and 385B of 2017 (Consolidated)· [2023] KEELRC 227 (KLR)

Chrismer Express Limited & another v Killmall International Limited (Cause 385A of 2017) [2023] KEELRC 227 (KLR)

Employment and Labour Relations Court
27 January 2023
4,217 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Two claimants - a limited liability company and a business name registrant, both in transport, courier and logistics - were engaged by Kilimall International Limited in September 2016 as Drop Shipping Associates under similarly worded Drop Shipping Service Contract Agreements and separate Secondment Agreements, under which they provided riders and motorbikes for deliveries. They claimed they were constructively and unfairly terminated on January 24, 2017 and jointly sought salary in lieu of notice, compensatory damages for unlawful termination and certificates of service for 32 riders. The respondent denied any employment relationship, asserting the claimants were independent contractors, and raised a preliminary objection on jurisdiction (overruled in a Ruling dated November 22, 2019) as well as non-exhaustion of the contract's dispute resolution mechanism under Clause 9 (amicable settlement, mediation, arbitration). At trial the Court framed three issues, principal among them whether the engagement was a contract of service or contract for service. The Court held that the contracts expressly designated the claimants independent contractors, lacked the ordinary clauses of employment contracts, and that the claimants invoiced for services, received a consolidated contract fee rather than salary and supplied their own tools. Further, the Employment Act's definition of 'employee' cannot apply to artificial persons. Applying the sanctity-of-contract principle, the Court held the parties were bound by the express terms. Finding no employment relationship, it concluded the dispute fell outside the ELRC's jurisdiction, did not reach the termination or relief issues, and dismissed both consolidated claims in their entirety with no orders as to costs.

Key legal issues

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01

Whether the claimants were engaged on a contract of service or a contract for service

Holding

The claimants were independent contractors on contracts for service, not employees

Reasoning

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.

p. 7
02

Whether the Court could infer an employment relationship notwithstanding the express independent-contractor clause

Holding

No - parties are bound by the express terms of their contracts and the Court will not rewrite them

Reasoning

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.

p. 8
03

Consequence of the finding on the Court's jurisdiction

Holding

Having found no employment relationship, the dispute fell outside the ELRC's jurisdiction and the remaining issues could not be determined

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Both claims, ELRC Cause Nos. 385A of 2017 and 385B of 2017, dismissed in their entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Companies Act (Cap 486, Laws of Kenya)
  • Registration of Business Names Act (Cap 499, Laws of Kenya)
  • Employment Act, 2007Section 2 (definition of 'contract of service' and 'employee')
  • Labour Institutions Act
  • Employment and Labour Relations Court Act
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (6)

  • Christine Adot Lopeyo vs Wycliffe Mwathi Pere
    (2013) eKLR
  • William Odhiambo Ramogi & 3 others vs Attorney General & 4 others
    (2020) eKLR
  • Benjamin Joseph Omusamia vs Upperhill Springs Restaurant
    (2021) eKLR
  • George Onyango Ochieng vs Chemelil Sugar Company Limited
    (2014) eKLR
  • Kenya Hotels & Allied Workers Union vs Alfajiri Villas (Magufa) Ltd
    [2014] eKLR
  • Pius Kimaiyo Langat vs Co-operative Bank of Kenya Ltd
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act; Employment Act, Labour Institutions Act (jurisdiction contested by respondent's preliminary objection)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.