Essak v Mkaja & another (Employment and Labour Relations Appeal E191 of 2024) [2025] KEELRC 2411 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Employer-employee relationship vs independent contractor
The 2nd Respondent was an employee engaged on a piece-rate/task basis; the economic reality test showed dependence on the hiring party for cross-border delivery, so the independent contractor argument failed
The court applied the economic reality test, noting that a driver delivering a vehicle across borders relies on the hiring party for customs and payment processes. The objection letter itself described an engagement that, on analysis, was a contract of service under section 18 of the Employment Act. The Appellant also signed Form 1 declaring the 2nd Respondent an employee and was estopped from denying it.
Exclusion under Section 5(3)(a) WIBA for casual employment
The exclusion applies only to casual employment outside the employer's trade or business; the driver was engaged for the purposes of the Appellant's vehicle-delivery business
Section 5(3)(a) excludes persons employed casually otherwise than for the purposes of the employer's trade or business. The objection letter showed the Appellant was in the business of facilitating vehicle deliveries, so the driver's engagement was for the purposes of the business. The cited authority did not assist the Appellant.
Wilful misconduct under Section 10(3) WIBA
The employer failed to prove the alleged policy limiting driving to 6.00 am - 6.00 pm; driving at 1.00 am could not amount to deliberate and wilful misconduct
Section 10(3) requires proof that the accident was caused by the employee's deliberate and wilful misconduct. The alleged policy was never produced before the Director. The court took judicial notice that vehicles may be driven on Kenyan roads 24 hours a day, so driving at 1.00 am could not constitute the disqualifying conduct.
Validity of the objection under WIBA
WIBA prescribes no format for an objection; a letter clearly outlining the grounds suffices, and the Appellant's objection was properly initiated
The Act is silent on the format for commencing an objection to the Director's assessment. The court held a letter adequate if it clearly sets out grounds. However, the Appellant's objection failed on its merits because the engagement was one of service and no wilful misconduct was proved.
Legal principles established
#- Courts look past the label the parties assign to their relationship to its true nature; a task-based or piece-rate arrangement is a contract of service, not a contract for services
- Under Section 10(3) WIBA the burden lies on the employer to prove deliberate and wilful misconduct of the employee to defeat compensation
- An employer who executes Form 1 declaring a person his employee is estopped from denying that statement
- Issues not raised in the objection to the Director cannot be introduced for the first time on appeal
Court orders
#- 1.The Appellant's appeal is dismissed
- 2.The Appellant shall pay costs of the appeal
- On appeal from
- Director of Occupational Safety and Health Services (statutory objection under WIBA)
- ML & SP/ DOSHS/WIBA/MSA/14851
- Jurisdiction invoked
- First appellate jurisdiction under the Work Injury Benefits Act (Section 51 objection/appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Essak v Mkaja & another (Employment and Labour Relations Appeal E191 of 2024) [2025] KEELRC 2411 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 13th September 2024 (Mombasa ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2411/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.