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ELRCDismissedNot stated in judgment

Mukabwa v Better Stream Care Limited (Cause E012 of 2025) [2025] KEELRC 2648 (KLR)

Employment and Labour Relations Court
30 September 2025
NMNzioki Wa Makau
1,413 words in judgment
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The bottom line

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A Kenyan employment court dismissed an attempt to throw out a worker's claim early, ruling that deciding worker status requires examining the facts first.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 16th June 2025 arguing that the Employment and Labour Relations Court lacked jurisdiction because the cause of action arose from a collaboration or joint venture agreement, constituting a contract for service rather than a contract of service, and therefore outside section 12 of the Employment and Labour Relations Court Act. The Respondent relied on Owners of Motor Vessel 'Lilian s' v Caltex Oil, Samuel Kamau Macharia, and Mukisa Biscuit Manufacturers Ltd v Westend Distributors. The Claimant countered that determining the nature of the relationship would require the ascertainment of facts and evidence, citing Muhu Holdings, John Kamau Mburu v PATH (which in turn cited Sagaz Industries), and Salome Maina. The court, per Nzioki Wa Makau J, adopted the Mukisa Biscuit formulation that a preliminary objection must be a pure point of law argued on assumed facts, and cannot be raised where facts must be ascertained or judicial discretion exercised. Applying that test, the court found that determining whether the contract was one of service or for service requires examining the parties' relationship, the control test, the integration of the work into the Respondent's business, and remuneration and benefits such as leave pay — all factual questions. The preliminary objection was therefore held misplaced and premature, dismissed with costs in the cause. Directions on disposal of the suit were to follow. The judgment is dated 30th September 2025 at Kisumu.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court has jurisdiction to hear this suit
  2. 2.Whether the Preliminary Objection meets the threshold of a pure point of law / is merited
  3. 3.Who should bear costs

Key legal issues

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01

Whether the preliminary objection was raised on a pure point of law

Holding

The objection was not a pure point of law; facts must be ascertained to determine the nature of the parties' relationship

Reasoning

Applying Mukisa Biscuit Manufacturers Ltd v Westend Distributors Ltd, the court held that a preliminary objection cannot be raised if any fact has to be ascertained. Determining whether the collaboration agreement was a contract of service or for service requires examination of control, integration into the business, remuneration and benefits such as leave pay, all of which are factual inquiries unsuitable for determination on a preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection cannot be raised where facts have to be ascertained
  • Determining whether a relationship is a contract of service or for service requires examination of control, integration, remuneration and benefits

Court orders

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  1. 1.The preliminary objection dated 16th June 2025 is dismissed
  2. 2.Costs to be in the cause
  3. 3.Directions on the disposal of the suit to follow the ruling

The bench

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One judgment of the whole court — no separate or dissenting opinions.

NM
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act

Relief refused

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Respondent's plea for dismissal of the suit with costs

The objection was premature as facts must be ascertained to determine the nature of the relationship

p. 3

Costs

costs being in the cause

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In my considered view, there is a factual position that must be ascertained and therefore I find the preliminary objection misplaced and entirely premature. As such the objection is dismissed with costs being in the cause.
p. 3Dismissal of preliminary objection and costs
a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
p. 3Definition of a preliminary objection (per Newbold P., Mukisa Biscuit)
The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. The Court considers that this improper practice should stop
p. 3Caution against improper preliminary objections

Issues in the judgment

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minor

The judgment does not state the names of the parties or the case number, identifying them only as 'Claimant' and 'Respondent'

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, "Mukabwa v Better Stream Care Limited (Cause E012 of 2025) [2025] KEELRC 2648 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2648/eng@2025-09-30

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