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ELRCDismissedCause No 859 of 2018· [2023] KEELRC 1595 (KLR)

Okwemba v Vishnu Builders & Developers Limited (Cause 859 of 2018) [2023] KEELRC 1595 (KLR)

Employment and Labour Relations Court
30 June 2023
SRStella Rutto
2,306 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a Kshs 7.2 million termination claim because the worker was an independent contractor, not an employee.

What this practically means

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Executive summary

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The claimant, by an amended Statement of Claim dated 13th July, 2018, sought Kshs 7,238,400.00 from the respondent, being notice pay, house allowance, severance pay, service pay, leave pay for 36 years and compensatory damages. He alleged he was engaged in 1981 as a Foreman and that on 20th June, 2017, while working at a site in EkaTown, Kikuyu, a wall collapsed on him causing spinal injuries, after which he was declared redundant. The respondent denied any employment relationship, contending the claimant was an independent contractor who sourced subcontracts from it and other parties, and asked for dismissal with costs. In evidence, the claimant maintained he was a salaried employee, while the respondent's Managing Director, Mr. Bhimji Mavji Rabadia, testified that the respondent was incorporated on 30th July, 2012, and produced a hand-written agreement describing the claimant as a subcontractor who undertook to refund medical expenses, payment vouchers identifying him as a subcontractor, and a 2016 agreement he signed as a contractor for Trident Plumbers Ltd. The court distilled three issues, chief among them whether an employment relationship existed. Applying the hallmarks of an independent contractor, including absence of control and the claimant's freedom to work for others, the court found the claimant was an independent contractor, not an employee. Consequently, the dispute fell outside the Court's jurisdiction and the issues of unfair termination and entitlement to reliefs could not be determined. The claim was dismissed with no orders as to costs.

Key legal issues

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01

Whether an employment relationship existed between the claimant and the respondent

Holding

No employment relationship existed; the claimant was an independent contractor/subcontractor.

Reasoning

The respondent was incorporated on 30th July, 2012, yet the claimant claimed employment since 1981, which the court found illogical. A hand-written agreement described the claimant as a subcontractor who would refund medical expenses; payment vouchers identified him as a subcontractor; he signed an agreement as a contractor for Trident Plumbers; and he admitted working for other companies. The element of control was absent, taking the relationship outside employer/employee.

p. 4
02

Whether the claimant was unfairly and unlawfully terminated

Holding

Not determined; the issue fell away once no employment relationship was found, and the dispute was outside the Court's jurisdiction.

Reasoning

Having found no employment relationship, the court held the dispute fell outside its jurisdiction. Proof of an employment relationship is foundational to an unfair termination claim, and without that foundation fairness of termination cannot be determined. The respondent had also submitted that the claimant failed to meet the burden of proof under Section 47(5) of the Employment Act.

p. 5

Legal principles established

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  • Proof of the existence of an employment relationship is the foundation of a claim for unlawful termination; without it, the Court cannot determine the fairness of a termination.
  • A relationship where the worker is free to work for other companies and is described in agreements as a subcontractor or contractor falls outside the employer/employee relationship.

Court orders

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  1. 1.The claim was found to be without merit and dismissed with no orders as to costs.

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 47(5)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Moses Waithaka Njunge v Liberty Life Assurance Kenya Limited
  • Protus Wanjala Mukite v Anglo African Properties t/a Jambo Mutara Lodge
  • Kenya Hotels & Allied Workers Union v Alfajiri Villas (Magufa) Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; Employment Act, 2007 (Sections 43 and 47(5)) invoked

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, "Okwemba v Vishnu Builders & Developers Limited (Cause 859 of 2018) [2023] KEELRC 1595 (KLR)", Case Analysis (2023). Cause No 859 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1595/eng@2023-06-30

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