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ELRCPartially AllowedStatement of claim dated 10th February 2022 (ELRC, Nairobi)· [2025] KEELRC 2791 (KLR)

Maina v Lynk Jobs Limited & another; Lynk Jobs Limited (Claimant); Maina & 2 others (Respondent) (Cause E091 of 2022) [2025] KEELRC 2791 (KLR)

Employment and Labour Relations Court
16 October 2025
JKJ. W. Keli
5,775 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 Claimant sued the Respondents claiming terminal benefits of Kshs. 1,393,114.80 (untaken leave, unpaid leave dues and severance), a declaration that his redundancy amounted to unfair and unlawful termination with 12 months' salary as compensation, general damages for racial discrimination and violation of constitutional rights, declarations of unfair labour practices, and orders concerning alleged forgery of his contract forwarded to the immigration department and violation of his right to privacy. The Respondents denied the claim, asserting the claimant converted from employment to consultancy through his company Red Sherman International Limited from 2016 to 2020, reverted to employment for 11 months from January 2020, and mutually agreed a separation. They counterclaimed for conversion of company property, salary paid while the claimant engaged in a competing business through Brookhill Projects Limited, breach of contract and fiduciary duty, and indemnity. The court framed six issues, principally the nature of the relationship. It found the employment contract was materially varied by the claimant's email of 8th July 2016 into a contract for services, with fees paid to his company and withholding tax deducted instead of PAYE, so the claimant was a consultant and the court lacked jurisdiction over that relationship. The claimant having negotiated a mutual separation, redundancy could not arise, and the discrimination and unfair termination claims collapsed. The respondent's counterclaim was not prosecuted as its case was closed before cross-examination was completed. The court ordered the 1st respondent to pay the claimant's dues of Kshs. 1,393,114.80 within 30 days of surrender of admitted properties, with each party bearing its own costs.

Key legal issues

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01

Nature of the relationship between the parties

Holding

The claimant was a consultant under a contract for services from July 2016, not an employee; the court lacked jurisdiction over that relationship

Reasoning

The claimant's email of 8th July 2016 requested payment as a service fee away from a salary structure, with withholding tax rather than PAYE, NSSF and NHIF, and fees were paid to his company Red Sherman International Limited. Although PAYE was deducted from 2018/2019, there was no request to revert to employee status, and the parties' conduct showed a fluid relationship. The court deals with employees, not consultancies.

p. 10
02

Unfair termination/redundancy

Holding

The claim failed; the separation was mutually negotiated, so redundancy could not arise

Reasoning

The claimant himself told the court he negotiated his contract and entered a mutual separation. Redundancy is a forced termination governed by section 40 of the Employment Act with Ministry of Labour involvement, none of which applied here, and the claimant did not challenge the process save for terminal dues.

p. 11
03

The counterclaim

Holding

Not prosecuted; the respondent's case was closed before its witness was fully cross-examined

Reasoning

RW1 was stood down due to difficulty tracing documents, failed to attend subsequent hearings despite a conditional adjournment, so the respondent's case was marked closed and its evidence was untested. The PPE claim arose outside any employment relationship and fell outside the court's jurisdiction.

p. 9

Legal principles established

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  • A contract of employment may be materially varied by the parties' conduct and correspondence into a contract for services, particularly where the worker requests payment as a service fee to avoid statutory deductions
  • A person who opts out of employee status to evade statutory deductions cannot claim the safeguards of the Employment Act
  • Redundancy is a forced termination with the procedure under section 40 of the Employment Act

Court orders

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  1. 1.The claimant's dues of Kshs. 1,393,114.80 to be settled by the 1st respondent within 30 days of surrender of the properties the claimant admits to possess under paragraph 14 of his claim
  2. 2.Each party to bear its own costs in the claim and counterclaim

Authorities

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Legislation

  • Employment ActSection 40
  • Companies ActSection 900
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court); limited by the court's lack of jurisdiction over contracts for services

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, "Maina v Lynk Jobs Limited & another; Lynk Jobs Limited (Claimant); Maina & 2 others (Respondent) (Cause E091 of 2022) [2025] KEELRC 2791 (KLR)", Case Analysis (2025). Statement of claim dated 10th February 2022 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2791/eng@2025-10-16

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