https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1291

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT KERICHO CAUSE NO. E025 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) KIMUTAI NGENO…………………..………….……… CLAIMANT VERSUS GREENLIGHT PLANET KENYA LIMITED T/A SUN KING…………………...……… RESPONDENT RULING Introduction 1. Before this Honourable Court are two applications for determination. The Claimant/Applicant filed a Notice of Motion dated 8th October 2025 seeking the following orders that: 1.This Honourable Court do issue an order compelling the Respondent to immediately release to the Claimant and file in court all employment records, payroll data, portfolio transfer records, and other documents relating to the Claimant. 2.This Honourable court do issue an order restraining the Respondent, its agents and/or servants from intimidating, KRC CAUSE NO. E025 OF 2025 RULING 1 | P A G E victimizing, harassing, or terminating any employee/agent who may testify or assist in these proceedings. 3.This Honourable court do issue an order preserving all electronic records, data, and logs on the Respondent’s Angaza and Kazi App platforms, pending the hearing and determination of this Application. Claimant supporting affidavit 2. The application is supported by the grounds set out thereunder and by the supporting affidavit of the Claimant/Applicant on even date. 3. The Claimant/Applicant avers that although engaged by the Respondent as an “agent,” he was in fact subjected to full employment controls, including PAYE deductions, mandatory use of company applications, and regular salary payments. 4. The Claimant/Applicant avers that the Respondent acted in bad faith by manipulating stock records to create a false default, unlawfully stopping his salary, repossessing his portfolio, and blocking his access to systems, amounting to constructive dismissal. 5. The Claimant/Applicant further contends that the Respondent has misclassified him and other agents KRC CAUSE NO. E025 OF 2025 RULING 2 | P A G E as independent contractors while exercising full employer control, withheld employment records contrary to sections 10(7) and 74 of the Employment Act, and risks destroying crucial electronic evidence stored in its platforms. 6. The Claimant/Applicant fears intimidation of witnesses and asserts that unless urgent orders are granted, he and similarly affected agents will suffer irreparable harm, loss of livelihood, and violation of constitutional rights under Articles 22, 23, 35, 41, and 47. He therefore prays for the Court’s intervention to protect his rights and those of other agents. Respondent’s replying affidavit 7. The Respondent opposed the Claimant/Applicant’s application vide a replying affidavit sworn by Diana Orwa, the Respondent’s Agent Welfare Lead dated 23rd January 2026. 8. The Respondent contends that the Claimant/Applicant was engaged strictly as an independent Energy Officer under a contract for service dated 24th November 2020, and not as an employee. The Respondent depones that the Claimant/Applicant’s remuneration was commission-based, performance-linked, and subject KRC CAUSE NO. E025 OF 2025 RULING 3 | P A G E to withholding tax, not fixed salaries or statutory payroll deductions. 9. The Respondent emphasizes that the Claimant/Applicant was free to work with competitors, was not supervised in day-to-day operations, and therefore no employer-employee relationship existed within the meaning of the Employment Act, 2007. 10.The Respondent further averred that the Angaza and Kazi App platforms were merely operational tools and did not create employment status, and that the prayers sought for preservation and disclosure of records amount to a fishing expedition, prejudicial to the Respondent’s proprietary information. 11. The Respondent maintains that it has acted lawfully, transparently, and in good faith, denies any intimidation or victimization, and prays that the Claimant’s application be dismissed with costs. Respondent’s application 12. The Respondent on the other hand filed a Notice of Motion dated 9th December 2025 seeking the following orders that: KRC CAUSE NO. E025 OF 2025 RULING 4 | P A G E 1.The Honourable Court be pleased to strike out the Claimant’s suit against the Respondent in limine. 2.The Honourable Court do give such further or other as it may deem fit in the interest of justice. 3.The costs of the application together with those of the entire suit be borne by the Claimant. Respondent’s supporting affidavit 13. The application is supported by the affidavit by Diana Orwa dated even date as the application. 14.The Respondent avers the Claimant/Applicant instituted this suit through an Amended Statement of Claim dated 23rd October 2025, seeking compensation for unfair termination equivalent to twelve months’ gross salary and damages for constructive dismissal, alleging that his employment was unfairly terminated. 15. The Respondent, however, maintains that the Claimant was engaged as an Energy Officer in the Bomet region under an agreement dated 24th November 2020, which expressly stipulated that he would serve as an independent sales agent on a non-exclusive basis, and that no employment or KRC CAUSE NO. E025 OF 2025 RULING 5 | P A G E agency relationship would arise between the parties. 16. The Respondent avers that the Claimant/Applicant’s engagement remained strictly that of an independent contractor under the Energy Officer Agreement. Energy Officers, including the Claimant, operate autonomously, are remunerated through performance-based incentives subject to withholding tax, and are not entitled to salaries or statutory benefits. 17. The Respondent avers that the Claimant was not required to work exclusively for the Respondent, and the allocation of geographical regions was solely for market organization and efficiency, not supervision or control. Product-related training was facilitative and did not convert the relationship into employment, while stock-handling arrangements were purely commercial and did not imply employer control. Access to digital platforms was provided only to facilitate contractual obligations and customer service, consistent with an independent sales structure. 18.At all material times, the Respondent avers that the Claimant discharged his functions as an independent contractor, and no employer-employee KRC CAUSE NO. E025 OF 2025 RULING 6 | P A G E relationship existed. Consequently, under section 12 of the Employment and Labour Relations Court Act, this Honourable Court lacks jurisdiction to entertain the matter, rendering the Claimant’s suit incompetent and liable to be struck out in limine. 19. The Respondent therefore prays that the Court grants the orders sought in its application. 20. Parties canvassed the application by way of written submissions. Claimant’s submissions 21.The Claimant submitted that he has worked continuous for over three years, coupled with evidence of remuneration, tax remittances, and employer control, triggered statutory obligations under sections 2, 9(2), 10(7), 35(1), 37(1), 68, 74, and 3(6) of the Employment Act, 2007. He contends that denial of employment or reliance on contractual labels such as “independent contractor” cannot override statute, since the law criminalizes contracting out of protections and voids any waiver of employee rights. 22.The Claimant relied on several authorities including Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu & 4 others KRC CAUSE NO. E025 OF 2025 RULING 7 | P A G E [2018] KECA 196 (KLR) where the Court of Appeal held that continuous service beyond three months converts casual employment into a contract of service with full statutory protection. In Elizabeth Washeke and 62 Others v Airtel Networks (K) Ltd & Another [2013] KEELRC 572 (KLR) the court held that contractual labels or outsourcing cannot waive employee rights. 23. In Joseph Mutuku Ndolo v Kenya Wildlife Service [2017] eKLR held that employment disputes are governed by the Employment Act and not the Evidence Act. In Rashid Mazuri Ramadhan v Doshi & Co (Hardwares) Ltd & another [2017] KEELRC 1562 (KLR) held that employers cannot benefit from their own wrongdoing. In Kenya Commercial Bank Ltd v Carol Wanjiku Njenga [2015] eKLR held that failure to respond to a Notice to Admit Facts results in deemed admissions. In Kenya Union of Clinical Officers v Kenya Clinical Officers Union [2014] eKLR held that courts may grant protective injunctions against intimidation. In Everret Aviation Ltd v KRA [2013] eKLR held that substance prevails over form in determining employment relationships. Christine KRC CAUSE NO. E025 OF 2025 RULING 8 | P A G E Adot Lopeyio v Wycliffe Mwathi Pere [2013] KEELRC 244 (KLR) held that employment is determined by control, integration, economic reality, and mutuality of obligation. 24. The Claimant further relied on Kollengode Venkatachala Laksminarayan v Intex Construction Limited [2020] KEELRC 252 (KLR) held that balancing of factors determines true employment status. In Kenya Pipeline Company Ltd v Ndegwa & Another [2023] KECA 226 (KLR) which held that the control test includes dictating how, when, and under what conditions work is done. In Fredrick Byakika v Mutiso Menezes International Unlimited [2016] KEELRC 1225 (KLR) which held that remuneration terms and employer intent are critical in establishing employment; and Fremar Construction Co. Ltd v Minakshi Navin Shah [2005] KECA 101 (KLR) held that courts should avoid technicalities and focus on substance. 25. The Claimant submitted that in the case of Lunani & another (Suing as the Executors of the Will of the Late Stephan Lunani Walela) v Carlsberg International Limited & 4 others [2023] KEELC 22190 is inapplicable, since it was KRC CAUSE NO. E025 OF 2025 RULING 9 | P A G E confined to the Evidence Act and did not override express statutory duties. The Claimant therefore prays that the court compels production of employment records or draw adverse inferences under section 10(7) of the Employment Act, restrain intimidation, preserve electronic records on Angaza and Kazi App, recognize deemed admissions, and reject attempts to contract out of statutory protections. Respondent’s submissions 26. The Respondent submitted that the Claimant was not its employee within the meaning of section 2 of the Employment Act, but rather an independent contractor engaged under a contract for service dated 24th November 2020. The Respondent emphasizes that remuneration was commission-based, subject to withholding tax, and not fixed salaries or statutory deductions, and that the Claimant was free to work for competitors without supervision of hours or day-to-day operations. In applying the established tests control, integration, economic reality, and mutuality of obligation, the Respondent argued that none point to an employment relationship. Reliance is placed on Christine Adot Lopeyio v Wydiffe KRC CAUSE NO. E025 OF 2025 RULING 10 | P A G E Mwathi(supra), Kollengode Venkatachala Laksminarayan v Intex Construction Limited (Supra), and Kenya Pipeline Company Ltd v Ndegwa & Another (Supra), which affirm that the modern approach requires balancing all relevant factors, including control, exclusivity, remuneration, and risk of loss. 27. The Respondent further cited Fredrick Byakika v Mutiso Menezes International Unlimited (supra), which held that mere use of employment terminology does not create an employment relationship, and Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] KECA 152, cautioning courts against rewriting contracts. It is therefore submitted that the Claimant’s application for production of employee records is misconceived, speculative, and untenable, as no such records exist, and that the relief sought would amount to a fishing expedition prejudicial to the Respondent. 28. Accordingly, the Respondent prays that the Claimant’s application dated 8th October 2025 be dismissed with costs, and the Respondent’s KRC CAUSE NO. E025 OF 2025 RULING 11 | P A G E application dated 9th December 2025 be allowed as prayed. Analysis and determination 29.The court has considered the two applications together with the affidavits and rival submissions by both parties, the issue for determination is whether in the first application by the Claimant should the Respondent be ordered to provide the required documents. As to the Respondent’s application should the claim be struck out? 30. Sections 10 and 74 of the Employment Act, provides an employer bears a mandatory duty to keep and maintain proper employment records of all persons engaged in its service as the main custodian. In the particular case, the Claimant argues that he was continuously engaged by the Respondent for a period exceeding three years and was unfairly terminated, thereby attracting the full protection of the Act. The Respondent, however, contends that the Claimant was not its employee but rather an independent contractor. It is the Claimant’s respectful submission that such denial cannot defeat the statutory obligation imposed KRC CAUSE NO. E025 OF 2025 RULING 12 | P A G E upon the employer to maintain records, and that the Court must determine the true nature of the relationship by substance rather than contractual labels. 31.Looking at the documentation, the parties have not furnished the court with a copy of the contract of service to establish the nature of the relationship between the Claimant and the Respondent. The evidentiary burden of proving the existence of an employment relationship rests upon the party claiming the same in accordance with sections 107, 108, 109 and 112 of the Evidence Act, read together with section 47(5) of the Employment Act. Ordinarily, where a person is engaged as an employee, such engagement is evidenced by the execution of a contract of service, which serves to delineate the rights and obligations of both employer and employee. 32. Article 162(2) of the Constitution established this Honourable Court (ELRC) to have jurisdiction to handle employment matters and Section 12(1) of the Employment and Labour Relations Act including: a) disputes relating to or arising out of employment between an employer and an employee; KRC CAUSE NO. E025 OF 2025 RULING 13 | P A G E b) disputes between an employer and a trade union; c)disputes between an employers’ organisation and a trade union’s organisation; d) e) disputes between trade unions; disputes between employer organisations; f) disputes between an employers’ organisation and a trade union; g) disputes between a trade union and a member thereof; disputes between an employer’s organisation or a federation and a member thereof; h) disputes concerning the registration and election of trade union officials; and i) disputes relating to the registration and enforcement of collective agreements. 33. Clearly, the employer has the responsibility to keep available the documents of its employees. Section 10(6) of Employment Act provides that “the employer shall keep the particulars prescribed in subsection 1 (above)for a period of five years after termination of employment.” Section 74(1) of the Employment Act also provides that “the employer shall keep written records of all KRC CAUSE NO. E025 OF 2025 RULING 14 | P A G E employees employed by the firm with whom he has entered into a contract under this Act...........” 34. The court has not been provided with such a contract and is not possible to tell if the Claimant was an employee or an independent contractor. There is a document produced as exhibit 1 by one Diana Orwa which is completely illegible. The court would ask the Respondent to provide that document physically or at least a legible copy in order to decipher the Claimant’s employment status with the Respondent. 35. The court would find it more just to have any documents that the Respondent may have including payroll data and any other documents in order to make a just determination in this case. As it is, the court is unable to determine if the Claimant was an employee of the Respondent or an independent contractor and would be unjust to strike the case without evidence. 36. The court is persuaded by the case of JOSEPH MUTUKU NDOLO -VS- KENYA WILDLIFE SERVICE (Supra) where the court held that employment disputes are governed by the Employment Act not the Evidence Act. KRC CAUSE NO. E025 OF 2025 RULING 15 | P A G E 37. At this point the court finds it premature to decide if the Claimant has an employee/employer relationship with the Respondent. 38. The court therefore orders the Respondent to produce a clear Energy Officer agreement and any other documents that may assist the court to determine the Claimant’s then status. 39. Further, the application by the Respondent to struck out the case is immature and is not merited at this point and is declined. The case must proceed to hearing in order to determine the case in its entirety. And as earlier stated, the Respondent is to avail clear, legible documents within the next 21 days of this date and case to proceed for hearing on 7th July 2026. 40. Each party will bear its own costs. It is so ordered. Dated, Signed and Delivered virtually at Nakuru this 15th Day of May, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER KRC CAUSE NO. E025 OF 2025 RULING 16 | P A G E In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE KRC CAUSE NO. E025 OF 2025 RULING 17 | P A G E