Kilonzo v Avacare Kenya Limited; Pharmaceutical Society of Kenya (Interested Party) (Employment and Labour Relations Cause 611 of 2019) [2025] KEELRC 2302 (KLR)
The bottom line
#A Kenyan court ruled a pharmacist was an employee, not a contractor, her dismissal was fair, and her employer broke the law by not making her a director.
What this practically means
#Executive summary
#Key legal issues
#Employment vs independent contractor relationship
The relationship was one of employment; the written contract of service, NSSF contributions, control over the Claimant's work, the disciplinary process and the copying of the termination letter to the labour office established employment.
The letter of offer created a written contract of service with a 'gross/basic salary' and NSSF contributions. Under section 10(5) of the Employment Act any change of form required a written instrument signed by both parties; none was produced. The control test was satisfied as the Respondent assigned a workstation and supervisor, and it invoked section 41 disciplinary rights available only to employees. Fee notes and withholding tax were generated by the Respondent itself and could not displace the written contract.
Obligation to appoint the Claimant to the Board of Directors
Section 21 of the Pharmacy and Poisons Act required the Respondent to appoint the Claimant, as its superintendent pharmacist, as a member of its Board of Directors; failure was a breach of the law.
Section 21 requires a licensed body corporate to appoint a registered pharmacist who plays the twin roles of superintendent pharmacist and director. The Respondent's witness conceded the Claimant acted as superintendent pharmacist, and the contention that the legislation was not operational failed because the Act came into force on 1st May 1957. However, no compensation flowed because the directorship carried no remuneration absent provision in the articles.
Validity and fairness of the termination
Two of the three infractions (unauthorized relocation of workstation and failure to notify supervisor of departure) fell within the band of reasonable employer responses, and procedure was fair, so termination was legitimate despite the third ground being unreasonable.
Applying the range of reasonable responses test, the court found the Respondent entitled to discipline the Claimant for the first two infractions even if minor; punishment is the employer's prerogative once infractions are proved. The third accusation (notifying the Board of the address change) was an obligation of the superintendent pharmacist and unreasonable grounds for dismissal. Procedurally, a show cause letter and disciplinary hearing with the section 41 accompaniment right were afforded.
Legal principles established
#- A written contract of service cannot be converted into an independent contractor relationship by conduct; any variation must be in writing executed by both parties.
- Whether a dismissal is fair is tested against the range of reasonable responses of a reasonable employer, not the tribunal's own view.
- The burden of justifying the validity of a termination decision lies with the employer on a balance of probabilities.
- Under section 21 of the Pharmacy and Poisons Act, a body corporate trading in pharmaceutical products must engage a registered pharmacist as superintendent pharmacist who must also be appointed to its Board of Directors.
- A director is not entitled to remuneration unless the articles expressly provide for it.
Court orders
#- 1.Declared that the Claimant and Respondent were in an employment and not independent contractor relationship.
- 2.Found that the Claimant's contract of service was terminated for valid reasons and in accordance with fair procedure.
- 3.Declined compensation for unfair termination.
- 4.Declined the declaration of violation of the right to fair labour practice and general damages for verbal abuse and emotional trauma.
- 5.Ordered the Respondent to furnish the Claimant with a certificate of service.
- 6.Ordered the Respondent to pay PAYE tax on the amounts paid to the Claimant as and when the Kenya Revenue Authority demands, and furnish the Claimant with requisite proof of the payments.
- 7.Declined the declarations that failure to deduct and remit NHIF and NSSF dues amounted to an offense.
- 8.Declined reimbursement of Ksh. 9,972.00 for want of proof.
- 9.Declined the declaration of discrimination for want of proof and declined compensation for failure to appoint the Claimant as director.
- 10.Ordered every party to the cause to bear own costs.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction premised on the existence of an employment relationship (Employment Act); the court first determined whether the relationship was employment or independent contractor as a jurisdictional issue
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilonzo v Avacare Kenya Limited; Pharmaceutical Society of Kenya (Interested Party) (Employment and Labour Relations Cause 611 of 2019) [2025] KEELRC 2302 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2302/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.