[2018] KEELRC 1014 (KLR)
The court held that, given the claimant's allegations of an oral employment contract prior to the issuance of a written consultancy agreement, it would be premature to determine the existence of an employer-employee relationship at the preliminary stage. The court found that the question of whether an oral contract...
Source-derived case information.
- Citation
- [2018] KEELRC 1014 (KLR)
- Parties
- Claimant: June Dezina Vel; Respondent: The Nation Media Group Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 555 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled; matter to proceed to full trial
- Judges
- NJ Abuodha
- Legal Topics
- Employment Relationship, Independent Contractor Status, Oral Contracts, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
June Dezina Vel
Claimant
The Nation Media Group Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the court has jurisdiction to hear the claim in the absence of a written employment contract.
- 2 Whether an oral contract of employment existed between the claimant and the respondent.
- 3 Whether the claimant was an employee or an independent contractor.
Ratio Decidendi
The court held that, given the claimant's allegations of an oral employment contract prior to the issuance of a written consultancy agreement, it would be premature to determine the existence of an employer-employee relationship at the preliminary stage. The court found that the question of whether an oral contract of employment existed is a factual issue requiring evidence from both parties, which can only be resolved at a full trial. Therefore, the preliminary objection on jurisdiction was overruled, and the matter was directed to proceed to full trial on its merits.
Court Disposition
preliminary objection overruled; matter to proceed to full trial
Orders
- The preliminary objection is overruled.
- The matter shall proceed to full trial on merits.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OFKENYA AT NAIROBI
CAUSE NO 555 OF 2017
JUNE DEZINA VEL.........................................................................CLAIMANT
VERSUS
THE NATION MEDIA GROUP LTD........................................RESPONDENT
RULING
1. The respondent raised a preliminary objection that the court lacked jurisdiction to hear and determine the issue raised in the claim as there was no employment relationship between the claimant and the respondent.
2. According to counsel for the respondent the agreement between the claimant and respondent stipulated that the claimant was engaged as an independent contractor. Counsel submitted that clause 8 of the agreement provided that it was understood by the parties that the consultant was an independent contractor with respect to the company and not an employee and that the respondent was not to provide fringe benefits including health insurance, paid vacation or any other employee benefits.
3. The respondent further submitted that the claimant did not annex any evidence of her employment with the respondent and that the payslips and certificate of service attached by the claimant related to her previous employment at Royal Media Services Limited and were of no relevance to the claim before the court.
4. According to the claimant she was offered employment by the respondent pending approval of the budget and that the parties agreed on an oral contract pending a written one once the budget was approved. The terms of the oral contract were that the claimant was to start her engagement on the month of July 2015 at a proposed salary of Kshs 100,000 per month which according to the claimant the respondent orally consented to.
5. The claimant has averred that her employment relationship with the respondent started earlier that December, 2015 when the respondent offered her a written contract to offer services to the respondent as a consultant.
6. The claimant contends that the initial employment contract was oral. A contract of employment can be verbal or written. The court would require to receive evidence to decide the existence or otherwise of the alleged oral contract. This can only happen at the full trial after hearing the parties.
7. The court is therefore of the view that in the circumstances of the allegations by the claimant that there was an oral contract of employment prior to December, 2015 when the written contract was issued, this would not be a proper stage to decide whether there existed employer-employee relationship between the claimant and the respondent.
8. The court therefore overrules the preliminary objection and directs that the matter proceed to full trial on merits.
9. It is so ordered.
Dated at Nairobi this 28th day of September, 2018
Abuodha Jorum Nelson
Judge
Delivered this 28th day of September, 2018
Abuodha Jorum Nelson
Judge
In the presence of:-
.................................for the Claimant and
....................................for the Respondent