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ELRCDismissedCause (unnumbered in judgment; Amended Memorandum of Claim dated 24th February, 2023)· [2024] KEELRC 1216 (KLR)

Kiverenge v Mbarire & another (Cause E881 of 2021) [2024] KEELRC 1216 (KLR)

Employment and Labour Relations Court
24 April 2024
DMD. K. Njagi Marete
2,231 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a gardener's unfair termination claim because he could not prove he was an employee rather than an independent contractor.

What this practically means

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Executive summary

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The Claimant, engaged as a gardener/caretaker at the Respondents' Karen home and hotel at a monthly rate of Kshs.15,000.00, alleged that after testing positive for COVID-19 in November 2020 following mandatory testing at KEMRI, he was barred from returning to work, stopped receiving salary, and was constructively and unfairly terminated. He sought declarations of discrimination, indignity and unfair labour practice under Articles 10, 27, 28, 29(f), 41 and 47 of the Constitution and Section 5(3) of the Employment Act, terminal dues totalling Kshs.365,810.00, constitutional compensation of Kshs.5,000,000, exemplary and general damages, and costs. The 1st Respondent denied any employment relationship, contending the Claimant was an independent contractor engaged on a need-by-need basis, and challenged the court's jurisdiction over non-employment disputes. The 2nd Respondent denied being the person sued. The court framed four issues, chief among them whether an employment relationship and its termination existed. Relying on the parties' cited authorities on distinguishing contracts of service from contracts for service, the court found the Claimant had not proved employment on a balance of probabilities, that the Respondent's contractor-client characterisation prevailed, and that there was accordingly no termination. All reliefs were refused. The claim was dismissed on 24th April 2024 with each party bearing their own costs.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the 1st Respondent

Holding

No contract of employment was established; the Respondent's case of an independent contractor engaged on a need-by-need basis prevailed

Reasoning

The court weighed the parties' accounts against the authorities on distinguishing contracts of service from contracts for service. The claimant produced no documentary evidence to displace the contractor-client characterisation; his conduct and the totality of circumstances did not indicate a contract of employment capable of termination.

p. 5
02

Whether there was a termination of employment

Holding

No termination was established since no employment relationship existed

Reasoning

Having found no contract of service inter partes, the court held that what the claimant characterised as a unilateral termination was in reality the cessation of an independent contractor engagement. The burden of proving employment and its termination rested on the claimant and was not discharged.

p. 5
03

Whether the claimant was entitled to the reliefs sought

Holding

Not entitled; the claim failed with the founding finding of employment

Reasoning

All reliefs - terminal dues, notice pay, constitutional damages for discrimination and indignity over compulsory COVID-19 testing - were premised on an employment relationship. That premise having failed, the ancillary declarations and compensatory claims collapsed with it.

p. 5

Legal principles established

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  • A party alleging an employment relationship must establish a contract of service on a balance of probabilities; mere assertion of employment without evidence will not suffice

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSections 2, 5(3), 31
  • Labour Relations Act
  • Industrial Act (Industrial Court Act)
  • Constitution of KenyaArticles 10, 27, 28, 29(f), 41, 47

Cases cited (4)

  • Omusamia v Upperhill Springs Restaurant (Cause 852 of 2017)
    [2021] KEELRC 3 (KLR)
  • Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited
    [2014] eKLR
  • Maurice Oduor Okech v Chegquered Flag Limited
    [2013] eKLR
  • Obonyo v Britam Life Assurance Co (K) Ltd
    [2023] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007, Labour Relations Act 2007 and Industrial Court Act 2011 (contested by the Respondent)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kiverenge v Mbarire & another (Cause E881 of 2021) [2024] KEELRC 1216 (KLR)", Case Analysis (2024). Cause (unnumbered in judgment; Amended Memorandum of Claim dated 24th February, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1216/eng@2024-04-24

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