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ELRCDismissedCause No E576 of 2020· [2023] KEELRC 3124 (KLR)

Masila v Athi Water Works Development Agency & another (Cause E576 of 2020) [2023] KEELRC 3124 (KLR)

Employment and Labour Relations Court
22 November 2023
DMD. K. Njagi Marete
1,620 words in judgment
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The bottom line

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A Kenyan court refused to strike out an employment claim just because the contract said 'consultant', holding the real relationship must be tested with evidence at a full hearing.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by D. K. Njagi Marete, J, delivered on 22nd November 2023, determined a notice of motion dated 26th April 2023 by which the applicants sought striking out of the claim on the ground that the court lacked jurisdiction, contending that the parties were engaged in a consultancy agreement rather than a contract of employment under the Employment Act, 2007. Alternatively, the applicants sought striking out of the 2nd Respondent. The Claimant/Respondent opposed, arguing that the application was a disguised preliminary objection improperly grounded on contested facts, and that the existence of an employment relationship must be determined on the full factual matrix - control, integration, provision of tools, salary, supervision and conduct of the parties - rather than on the terminology used. He detailed indicia of employment including a monthly salary of Kshs.250,000, allocated office space, supervision, signing of the ICT Policy, HR Manual, clocking-in, and integration into the legal department. The respondents relied on Lillian S Caltex and Samuel Kamau Macharia on the primacy of jurisdiction. The court agreed that a pure point of law on jurisdiction should be raised by preliminary objection, which admits no evidence, and that contested questions of contract of service versus consultancy require evidence at a hearing, citing the Maurice Oduor Okech approach. Finding the claimant's case the stronger, the court dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether the suit should be struck out for want of jurisdiction on the basis that the relationship was a consultancy agreement, not employment

Holding

The application failed; whether an employment relationship exists requires inquiry into the whole factual matrix and cannot be determined on the pleadings or terminology alone

Reasoning

The court accepted the claimant's material showing indicia of employment: monthly salary of Kshs.250,000, office space, supervision by the CEO and 2nd Respondent, provision of tools, control and integration into the business. Established principle requires examination of the parties' conduct without restriction to the labels used, and such inquiry requires evidence at a hearing. The claimant's case was found to outweigh the applicants'.

p. 4
02

Whether the jurisdictional challenge was properly brought by notice of motion rather than preliminary objection

Holding

The application should have been a preliminary objection; a motion resting on facts cannot carry a pure point of law and was therefore fallacious

Reasoning

The court agreed with the claimant that jurisdiction is a matter of law suitable only for a preliminary objection, which assumes the facts pleaded by the other side and does not entertain evidence. A notice of motion grounded on facts invites evidentiary dispute, disabling the present application in its form and substance.

p. 4

Legal principles established

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  • In determining the existence of an employment relationship, the court must inquire into the entire spectrum of facts and the parties' conduct, without being restricted to the terminology used in their documents
  • Jurisdiction is a pure point of law that must be raised by preliminary objection, which admits no evidence; a notice of motion grounded on facts invites evidentiary contest and is misplaced
  • Issues of contract of service versus consultancy contested on facts cannot be resolved preliminarily

Court orders

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  1. 1.The application dated 26th April 2023 is dismissed for want of merit
  2. 2.Costs of the application awarded to the Respondent (Claimant/Respondent)

Authorities

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Legislation

  • Employment Actsection 12
  • Employment Actsection 2 (definitions of employee and employer)

Cases cited (6)

  • Owners of the Motor Vessel 'Lillian S' v. Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia v. Kenya Commercial Bank Limited & 2 others
    (2012) eKLR
  • Deepak Lalchand Nichani v. Kenya Revenue Authority & another
    HC Con. Pet No. E042 of 2021
  • Mukhisa Biscuit Manufacturers Ltd v. Westend Distributors Ltd
    (1969) E.A. 696
  • Ibrahim Ulalo Case
  • Maurice Oduor Okech v. Chequered Flag Limited
    [2013] eKLR
Jurisdiction invoked
Employment Act, 2007 (section 12) - jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes

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, "Masila v Athi Water Works Development Agency & another (Cause E576 of 2020) [2023] KEELRC 3124 (KLR)", Case Analysis (2023). Cause No E576 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3124/eng@2023-11-22

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