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ELRCDismissedCause No 490 of 2017· [2023] KEELRC 2201 (KLR)

Wamuyu v Humprey & Company LLP & another (Cause 490 of 2017) [2023] KEELRC 2201 (KLR)

Employment and Labour Relations Court
22 September 2023
AMAnna Ngibuini Mwaure
4,814 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a consultant's claim, holding she was an independent contractor, not an employee, because she proved no salary, deductions, or benefits.

What this practically means

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Executive summary

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The Claimant sued alleging that on 10th October 2016 the 1st Respondent employed and/or contracted her as an independent consultant seconded to the 2nd Respondent to provide consultancy services on the IFES-funded Kenya Electoral Assistance Program 2017 at Kshs. 90,000 per month, under the late Dr. Stephen Njiru. She relied on an unsigned, undated consultancy agreement, an office and email on the 2nd Respondent's domain, supervision by staff of the 1st Respondent, and a Kshs. 50,000 Christmas cheque from the 1st Respondent as acknowledgment of an employment relationship, claiming unpaid fees including Kshs. 30,000 for outsourced audited accounts. The 1st Respondent denied employing her, disowned the unsigned agreement as a fabrication, and maintained the cheque was a one-off humanitarian token; the 2nd Respondent did not enter appearance. The court framed three issues: the existence of an employment or independent contractual relationship; whether the two Respondents were one and the same and whether the 1st Respondent was a proper party; and entitlement to relief. Applying the totality-of-relationship approach in Omusamia, Everret Aviation and Stevenson Jordan, the court held the Claimant was an independent contractor of the 2nd Respondent, not an employee, as she proved no salary, statutory deductions or statutory benefits. Relying on Salomon v Salomon, Victor Mabachi and the Limited Liability Partnership Act, the court held the two entities were legally separate, the only link being Dr. Njiru, and the 1st Respondent was not a proper party. The claim was dismissed with each party bearing their respective costs.

Key legal issues

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01

Employment relationship vs independent contractor

Holding

The Claimant was an independent contractor of the 2nd Respondent, not an employee

Reasoning

Applying the multi-factorial approach in Omusamia, Everret Aviation and Stevenson Jordan, the court found no proof of monthly salary, statutory deductions, leave or other statutory benefits of employment. The alleged consultancy agreement was undated, unsigned and left consideration blank. Her services were for a specific IFES/KEAP 2017 project, and the work was accessory to, not integrated into, any business of the 1st Respondent.

p. 8
02

Whether the 1st and 2nd Respondents are one and the same and whether the 1st Respondent is a proper party

Holding

The two entities are separate in law and the 1st Respondent is not a proper party

Reasoning

The 1st Respondent is an LLP with separate legal personality under the Limited Liability Partnership Act, 2011, and the 2nd Respondent is a company under the Companies Act, 2015. Salomon v Salomon and Victor Mabachi confirm separate identity absent factors warranting lifting the veil. The only link was Dr Njiru being partner in one and director of the other, and the Kshs. 50,000 cheque was a one-off token, not acknowledgment of employment.

p. 9

Legal principles established

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  • Whether a worker is an employee or an independent contractor is determined by examining the totality of the relationship, including control, integration, payment of wages, statutory deductions and statutory benefits, rather than party labels
  • A company is a separate legal person from its members and a limited liability partnership is a body corporate separate from its partners, so a common partner/director does not merge the two entities absent proof warranting lifting of the veil
  • A contract cannot be enforced against a third party who is not a party to the contract

Court orders

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  1. 1.The Claimant's claim is dismissed.
  2. 2.Each party will bear their respective costs.

Authorities

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Legislation

  • Employment ActSection 2
  • Limited Liability Partnership ActSections 6(2), 11(2)
  • Companies Act2015
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (15)

  • Symon Wairobi Gituma v. East African Breweries Limited & 3 others
    Industrial Court Cause Number 1011 of 2010
  • East African Breweries Limited V Kenya Revenue Authority
    (2007) EKLR
  • Omusamia v Upperhill Springs Restaurant
    (Cause 852 of 2017) [2021] KEELRC 3 (KLR) (5 October 2021)
  • George Kamau Ndiritu & Another vs Intercontinental Hotel
    [2015] eKLR
  • Everret Aviation Limited vs the Kenya Revenue Authority
    [2013] eKLR
  • Belofi vs Preddram Limited
    [1973] ALL ER 241
  • Simmons Vs Heath Laudry Company
    [1910] 1 KB 543
  • O' Kelly Vs Trusthouse Forte
    [1983] 3 ALL ER 456
  • Market Investigations Limited Vs Minister of Social Security
    [1968] 3 ALL ER 732
  • Fall Vs Hitchen
    [1973] 1 ALL ER 368
  • Stevenson Jordan and Harrison Ltd Vs Macdonald and Evans
    [1952] 1 TLR 101
  • Collins Vs. Herts County Council
  • Cassidy Vs. Ministry of Health
  • Salomon v Salomon
    [1897] AC 78
  • Victor Mabachi & Anor vs Nurturn Bates Ltd
    NRB CA Civil Appeal No. 247 of 2005 [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Wamuyu v Humprey & Company LLP & another (Cause 490 of 2017) [2023] KEELRC 2201 (KLR)", Case Analysis (2023). Cause No 490 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2201/eng@2023-09-22

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