Shayona Timber Limited v Ochieng (Employment and Labour Relations Appeal E031 of 2023) [2025] KEELRC 844 (KLR)

The hand-written security services agreement dated 2nd November 2015 expressly provided that the Respondent would be considered self-employed and handle his own statutory deductions. He signed it knowingly in the presence of witnesses, provided no evidence of fraud or duress, and received payment via petty cash vouchers for security services from 2017 to 2022, never demanding statutory deductions. Applying the tests distinguishing contract of service from contract for service, the dominant impression was one of contractor-client relationship.

Since the Respondent was found to be an independent contractor, the Employment Act provisions on house allowance (Section 31), annual leave (Section 28) and public holidays did not apply. The trial magistrate was held to have effectively rewritten the parties' contract by treating the security services contract as a letter of appointment. The awards totalling Kshs.444,168.40 were therefore set aside and the court found the appeal merited.

The service contract allowed either party to terminate on one month's notice. There was no documentary or corroborative evidence of how the contract was terminated. Even if the Appellant engaged another security provider, that was within the terms of the agreement the parties signed. In the absence of evidence of illiteracy or lack of knowing signature, the parties were bound by the contract.