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ELRCDismissedAmended Memorandum of Claim dated 19th February 2022· [2025] KEELRC 1276 (KLR)

Akrim v Mobile Consultations Africa Limited (Employment and Labour Relations Cause E055 of 2022) [2025] KEELRC 1276 (KLR)

Employment and Labour Relations Court
6 May 2025
HWHellen Wasilwa
2,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a Kshs.6.7 million unfair termination claim because the claimant could not prove she was actually an employee rather than a consultant.

What this practically means

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Executive summary

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The Claimant sued the Respondent (Tibu Health) claiming she was unfairly and unlawfully dismissed, seeking declarations, terminal dues and compensatory damages of Kshs.6,672,541.66, and orders protecting her alleged co-founder status, work permit and immigration status. She pleaded that she joined as a consultant in November 2019, became a co-founder, and transitioned in July 2020 to permanent employment as Chief Medical Officer earning Kshs.425,000 monthly, until her termination on 30th December 2021 without reasons or a hearing. The Respondent maintained she was an independent contractor under Consulting Agreements dated 9th December 2019 and 1st January 2020, terminated for material breach due to abusive conduct, and argued she held a Class G permit barring a contract of service and that the court lacked jurisdiction under Section 12 of the ELRC Act. The court found the parties admitted an independent consultancy but neither produced the consultancy agreement. It rejected the NSSF, NHIF and payslip evidence as showing only voluntary or individual contributions not attributable to an employer, and noted the co-founder/partnership issue had been held outside the court's jurisdiction in a ruling of 17th February 2023. It held no employment relationship existed, so unfair termination could not arise, and without the consultancy agreement it could not assess the legality of the termination. The claim was dismissed with no order of costs, delivered virtually at Nairobi on 6th May 2025 by Hellen Wasilwa, Judge.

Key legal issues

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01

Whether the Claimant transitioned from independent contractor to employee

Holding

No evidence of an employment relationship; both parties admitted an independent consultancy existed

Reasoning

The court noted both parties failed to produce the consultancy agreement, and the Claimant relied on NSSF, NHIF and payslip documents. The NSSF statement showed voluntary contributions from 21/11/2019 continuing even after termination, with no employer contribution; the NHIF statement was individual and named no employer; the payslip lacked NHIF and NSSF numbers. The documentary evidence contradicted the pleaded transition to employment in July 2020.

p. 6
02

Whether the termination was unfair and procedurally improper

Holding

The question does not arise in the absence of an employment relationship, and without the consultancy agreement the court cannot determine whether termination of the consultancy was proper

Reasoning

Since no employment relationship was established, wrongful/unfair termination under the Employment Act could not lie. The respondents admitted terminating the engagement under the termination clause of the consultancy relationship, but neither party produced the consultancy agreement itself, leaving the court unable to assess whether the termination complied with its terms.

p. 6
03

Whether the court has jurisdiction over the claim

Holding

The claim, premised on an employment relationship, was not proved; the co-founder/partnership issue was earlier found to be outside the court's jurisdiction

Reasoning

The Respondent argued under Section 12 of the Employment and Labour Relations Court Act that the court's jurisdiction is confined to employment relationships. The court found no employment relationship existed, and the co-founder/partnership claim had already been determined in a ruling of 17th February 2023 as not triable before the court for lack of jurisdiction.

p. 5

Legal principles established

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  • In determining the existence of an employment relationship, the court looks beyond the terminology used by the parties to the entire spectrum of facts and circumstances (as relied on from Maurice Oduor Okech vs Chequered Flag Limited, cited by the Claimant).
  • Statutory deductions records (NSSF/NHIF) that are voluntary, individual, uncertified or unattributed to an employer cannot prove an employment contract.

Court orders

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  1. 1.The claim is dismissed for want of proof
  2. 2.No order of costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment and Labour Relations Court ActSection 12
  • Kenya Citizenship and Immigration RegulationsSeventh Schedule (Class G/investor permit)

Cases cited (1)

  • Maurice Oduor Okech vs Chequered Flag Limited
    (2013) eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act

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, "Akrim v Mobile Consultations Africa Limited (Employment and Labour Relations Cause E055 of 2022) [2025] KEELRC 1276 (KLR)", Case Analysis (2025). Amended Memorandum of Claim dated 19th February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1276/eng@2025-05-06

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