Githinju v Elsamere Conservation Centre (Employment and Labour Relations Appeal E032 of 2023) [2024] KEELRC 979 (KLR)
The bottom line
#Kenya's Employment Court confirmed that employers who claim a worker was a 'consultant' must produce a written contract, or they lose—and pay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Magistrate erred in failing to analyse and accord due weight to the claimant's evidence
- 2.Whether the trial court considered materials not in evidence and displayed bias (the 'payroll'/muster roll and date discrepancies)
- 3.Whether the appellant was an employee of the respondent or an independent contractor
- 4.Whether the termination of the appellant's services was fair and lawful
- 5.Whether the trial court erred in awarding costs to the respondent
Key legal issues
#Whether the appellant was an employee or an independent contractor
The appellant was an employee of the respondent, not an independent contractor.
The respondent alleged a consultancy arrangement but never produced any consultancy agreement in evidence. Under section 10(7) of the Employment Act, the burden of proving the alleged terms of engagement lies with the employer where no written contract is produced. The appellant's evidence of monthly pay, supervision by the CEO and company-provided tools of trade pointed to employment. The trial court erred in reaching a contrary finding.
Whether the termination was unfair
The termination was not guided by section 41 of the Employment Act and was therefore unfair.
Having found the appellant was an employee, the court assessed the circumstances of the termination against the procedural fairness requirements of section 41 of the Employment Act, 2007. The respondent gave no reasons and subjected him to no disciplinary hearing; the termination therefore lacked procedural fairness, justifying compensation of six months' salary.
Whether the trial court's judgment was vitiated by error or bias
The trial court failed to be guided by the burden-of-proof rule and reached an erroneous decision dismissing the claim.
The court found the trial court erred in treating the appellant as an independent contractor despite the respondent's failure to produce a written consultancy contract, and further made findings of fraud that were not a pleaded or determining issue in the termination. Those errors warranted setting the judgment aside.
Legal principles established
#- Where an employer fails to produce a written contract of employment, the burden of proving or disproving the alleged term of employment rests on the employer.
- An employer should issue an employee with a written contract; absent one, the employer bears the burden of proving the alleged terms of engagement.
- On a first appeal the court re-evaluates the evidence and may affirm, reverse or vary the trial court's findings.
Court orders
#- 1.The appeal is allowed and has merit
- 2.The Hon. Chief Magistrate's judgement in ELRC No. E005 of 2022 is set aside and substituted with judgment in favour of the appellant
- 3.1 month salary in lieu of notice of Kshs 67,500
- 4.Service pay as pleaded of Kshs 33,750
- 5.Compensation of 6 months' salary as damages for unfair termination of Kshs 405,000
- 6.Leave pay of Kshs 67,500
- 7.Total award less statutory deductions
- 8.The respondent will pay the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrates Court at Naivasha (ELRC)
- CMELRC No. E005 of 2022
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the Chief Magistrate's Court (ELRC proceedings)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In this case, the respondent never produced any written contract. It is therefore the appellants word against the respondent which burden the appellant didn't discharge that the respondent was an independent consultant as opposed to an employee.
It is my finding that the appellant was an employee of the respondent and circumstance of his termination not being guided by the law in particular section 41 of the Employment act 2007, I find that indeed the appeal has merit and is allowed.
In the circumstances the Hon. Chief Magistrate's judgement in ELRC no E005 of 2022 is set aside and substituted with judgement in favour of the appellant as follows.
Total = 573,700/= less statutory declaration. The respondent will pay cost of this appeal
Issues in the judgment
#Arithmetic inconsistency in the award: the itemised figures (67,500 + 33,750 + 405,000 + 67,500) total Kshs 573,750, but the judgment states a total of 573,700/=
Internal inconsistency in the compensation computation: six months' salary compensation is computed as '6x75,000' while the pleaded salary was 67,500
The judgment records the claimant's employment start date inconsistently with the pleaded claim (25th September 2020 versus 28th September 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinju v Elsamere Conservation Centre (Employment and Labour Relations Appeal E032 of 2023) [2024] KEELRC 979 (KLR)", Case Analysis (2024). Naivasha CMELRC No. E005 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/979/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.