David Okutoto Obuchele v Cosmocare Limited [2017] KEELRC 759 (KLR)

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