[2017] KEELRC 759 (KLR)
The court found that, based on the claimant's own pleadings, the relationship between the claimant and the respondent was that of an independent contractor, constituting a contract for services rather than a contract of service. As such, the dispute did not fall within the jurisdiction of the Employment and Labour...
Source-derived case information.
- Citation
- [2017] KEELRC 759 (KLR)
- Parties
- Claimant: David Okutoto Obuchele; Respondent: Cosmocare Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1871 of 2015
- Procedural Posture
- Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; suit struck out with costs
- Judges
- DI Wasike
- Legal Topics
- Employment Relationship, Independent Contractor, Jurisdiction, Contract for Services
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Okutoto Obuchele
Claimant
Cosmocare Limited
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the relationship between the claimant and respondent was one of employment or independent contracting.
- 2 Whether the Employment and Labour Relations Court has jurisdiction over disputes involving independent contractors.
Ratio Decidendi
The court found that, based on the claimant's own pleadings, the relationship between the claimant and the respondent was that of an independent contractor, constituting a contract for services rather than a contract of service. As such, the dispute did not fall within the jurisdiction of the Employment and Labour Relations Court, which is limited to employment relationships as defined under section 2 of the Employment Act. The preliminary objection was therefore upheld, and the suit was struck out with costs.
Court Disposition
preliminary objection upheld; suit struck out with costs
Orders
- The suit is struck out with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 1871 OF 2015
DAVID OKUTOTO OBUCHELE.……..CLAIMANT
VERSUS
COSMOCARE LIMITED……….....RESPONDENT
RULING
1. The respondent has raised as preliminary the objection that the claimant was an independent contractor hence the court does not have jurisdiction to entertain the suit since the relationship does not fall within that contemplated section 2 of the Employment Act.
2. The claimant pleads that on 5th January, 2015 he was employed as a contractor by the respondent and assigned the responsibility of carpeting a 24 storey building at the respondent’s premises. The claimant further pleaded that in performing his duties he had to employ 15 employees who assisted him in the works. In the month of April the respondent’s site manager without justifiable cause refused or neglected to provide the necessary materials and the work stalled.
3. From the facts pleaded by the claimant himself it does not require much analysis or research to see on the face of it that the relationship between the claimant and the respondent was one of an independent contractor. That is to say a contract for services as opposed to contract of service. The latter is employment relationship over which the court has jurisdiction while the former is a commercial contract actionable in ordinary civil courts.
4. The preliminary objection therefore succeeds and the suit is struck out with costs.
5. It is so ordered.
Dated at Nairobi this 17th day of March, 2017
Abuodha J. N.
Judge
Delivered this 17th of March, 2017
Abuodha J. N.
Judge
In the presence of:-
……………………………………for the Claimant and
..........………………………………for the Respondent.
Abuodha J. N.
Judge