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ELRCDismissedMemorandum of Appeal dated 13th September 2024 (Mombasa ELRC)· [2025] KEELRC 2411 (KLR)

Essak v Mkaja & another (Employment and Labour Relations Appeal E191 of 2024) [2025] KEELRC 2411 (KLR)

Employment and Labour Relations Court
26 June 2025
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant, Transfreight Logistics Ltd, appealed against the decision of the Director of Occupational Safety and Health Services (1st Respondent) awarding the 2nd Respondent, Jared Mwambeja, KSHS 522,444.85 under the Work Injury Benefits Act following a road accident on 26 June 2023 while he was driving a vehicle from Mombasa towards Kampala. The Appellant's objection under Section 51(1) having been dismissed, it argued on appeal that the 2nd Respondent was an independent contractor on a one-off ad hoc contract, excluded from WIBA coverage under Section 5(3)(a) as a casual worker, and that the accident at 1.00 am was caused by his deliberate and wilful misconduct in driving outside designated hours, disqualifying him under Section 10(3). The court, as the first appellate court under WIBA, re-evaluated the material before the Director. It held that the label of independent contractor could not disguise a contract of service; the arrangement was a piece-rate, task-based engagement, and the economic reality test showed the driver depended on the Appellant for cross-border procedures. Having executed Form 1 declaring the 2nd Respondent his employee, the Appellant was estopped from denying it. The Section 5(3)(a) exclusion did not apply because the driver was engaged for the purposes of the Appellant's business. On wilful misconduct, the court placed the burden of proof on the employer; the alleged policy restricting driving hours was never produced, and driving at 1.00 am could not constitute deliberate and wilful misconduct since vehicles may lawfully be driven at any hour. Quantum issues raised for the first time on appeal, absent from the objection letter, were not entertained. The appeal was dismissed with costs.

Key legal issues

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01

Employer-employee relationship vs independent contractor

Holding

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

Reasoning

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.

p. 5
02

Exclusion under Section 5(3)(a) WIBA for casual employment

Holding

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

Reasoning

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.

p. 5
03

Wilful misconduct under Section 10(3) WIBA

Holding

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

Reasoning

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.

p. 6
04

Validity of the objection under WIBA

Holding

WIBA prescribes no format for an objection; a letter clearly outlining the grounds suffices, and the Appellant's objection was properly initiated

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Appellant's appeal is dismissed
  2. 2.The Appellant shall pay costs of the appeal

Authorities

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Legislation

  • Work Injury Benefits ActSection 51(1)
  • Work Injury Benefits ActSection 5(1) and (2)
  • Work Injury Benefits ActSection 5(3)(a)
  • Work Injury Benefits ActSection 10(3)
  • Work Injury Benefits ActSection 52
  • Employment Act, 2007Section 2 (definition of piece work)
  • Employment Act, 2007Section 18

Cases cited (2)

  • Massey v Crown Life Insurance Company
    [1978] 1 WLR 676
  • Joash Shisia Cheto v Thepot Patrick Charles
    [2022] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.