Theobald v Osani Community Health and Development Centre (Cause E005 of 2023) [2023] KEELRC 1550 (KLR)

The court applied the Mukisa Biscuit definition that a preliminary objection must raise a pure point of law on the assumption that all facts pleaded are correct, and cannot be raised if any fact has to be ascertained. Citing Kimondo J in Everret Aviation and Ibrahim Ulalo v Nation Media Group, it held that the nature of the relationship between the parties is a matter of fact requiring evidence. The claimant produced an appointment contract with terms of service, contesting the consultancy characterisation. The dispute could only be conclusively determined upon hearing both parties, so the objection failed.

The respondent argued the claimant was engaged under a medical consultancy contract; the claimant asserted employment as medical superintendent under a contract dated July 15, 2021, renewed in March 2022, with salary progression from Kshs 90,000 to Kshs 111,000. Following Everret Aviation, the court noted the traditional control and integration tests are no longer conclusive and the form of documentation and mode of payment are critical, matters requiring evidence at a hearing rather than determination at the preliminary stage.