The Employment and Labour Relations Court has clarified the distinction between a consultant and an employee, including when a person engaged as a consultant may claim employment benefits.
In a judgment delivered on October 5, 2026, the court considered a case involving a project management consultant who sought Ksh5.31 million from a construction company, arguing that he was entitled to unpaid earnings and other benefits after his engagement ended.
The claimant told the court that his consultancy agreement provided for a monthly fee of Ksh180,000.
He sought Ksh1.98 million in unpaid earnings for the 11 months he said he worked for the company, alongside Ksh720,000 in house allowance and other employment-related claims.
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The company opposed the claim, arguing that the arrangement was a consultancy and not an employer-employee relationship. It also maintained that the claimant had stopped providing services to the company.
In the case, the claimant argued that the company had frustrated his work, failed to pay his dues, and effectively terminated his engagement without notice or following the procedure required.
In its defence, the company further argued that the engagement was governed by a commercial contract
The company added that the claimant could not claim employment benefits without first establishing that the employment relationship exists.
After the court examined the written agreement and evidence presented, Justice Hellen Wasilwa observed that the agreement consistently described the claimant as a consultant.
The contract also provided for consultancy fees of Ksh180,000 per month upon submission of invoices detailing the services performed during the preceding month.
The court noted that the agreement would remain in force until the project was completed or the contract was terminated earlier. It also found that the claimant had not submitted the required documents to support his claim for unpaid consultancy fees.
The judge ruled that the claimant had failed to establish an employer-employee relationship with the company and therefore could not claim the benefits he sought on that basis.
The court concluded that the dispute concerned an alleged breach of contract rather than an employment relationship and dismissed the claim.
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