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Status of employment peremptory in defining rights and duties both in statutory and common law on employment issues.

Employees have numerous statutory rights e.g. maternity leave, annual leave, sick off, pension,  redundancy rights, termination notice, while Non-employees, whatever designation, do not enjoy any statutory and common law rights.
An employer has statutory rights to and from an employee.

Under the Employment Act, s. 2, an “employee" means an person employed for wages or salary and includes an apprentice and an indentured learner; while an "employer" means any person, or public body or any firm, corporation or company, who or which has entered into a contract of service to employ any individual, and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company

A ‘contract of service’ is a common law conception. A contract exists, at its basic level, when a person does some work and another pays for the other person for that work.
Other Statutory Definitions

Under KPA Act, Cap 391, an “employee" means any person in the service of the Authority

Under the NSSF Act, Cap 258 an “employee” means any person who has attained the age of sixteen years and who (a) is employed in Kenya under a contract of service; or (b) is ordinarily resident in Kenya and is employed outside Kenya (or partly in and partly outside Kenya) under a contract of service entered into with an employer who resides in or has a place of business in Kenya; or (c) is ordinarily resident in Kenya and is employed under a contract of service as master or a member of the crew of any ship, or as pilot, commander, navigator or member of the crew of any aircraft, where the owner of the ship or aircraft (or managing owner if there is more than one owner) or the manager resides in or has a place of business in Kenya: Provided that “employee” shall not include any person who has not attained the age of eighteen years and who (i) is undergoing full-time instruction in a school, or in any such place of education or training as may be prescribed for the purposes of this definition, or who is an apprentice; and (ii) is not in receipt of wages which provide him wholly or substantially with a livelihood;

Tax Statutes – Income Tax Act, Cap 470
Under s.2, a "contract of service" means an agreement, whether oral or in writing, whether expressed or implied, to employ or to serve as an employee for any period of time, and includes a contract of apprenticeship or indentured learnership under which the employer has the power of selection and dismissal of the employee, pays his wages or salary and exercises general or specific control over the work done by him; and for the purpose of this definition an officer in the public service shall be deemed to be employed under a contract of service;

“Employee" means, subject to section 3— (a) any person who has entered into or works under a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, is expressed or implied, is entered into orally or in writing, and whether it 's a contract of service or apprenticeship or learnership, or a contract personally to execute any work or labour; and (b) any person who has entered the employment of or is employed by the Government or any public or local government authority;

Who is an Employee then?

An employee works under a contract of service, not a contract for services. Unprotected persons (e.g. independent contractors, self employed persons) work under a contract for service.

Contract of service defined under the Employment Act, 2007 as  “an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies;”

Review of legislation indicates this essential requirement – requirement that a contract of service is necessary for an employment relationship to exist

Tests from Hyde: Who is an Employee?
  • a tenant who pays a portion of his earnings as rent; 
  • the relationship of a garment sewer, to the clothing manufacturer who has contracted actual production to a contractor; 
  • the relationship of a janitor to the owner of the building she cleans; 
  • the relationship of a physician to the insurance company that reimburses her for her services; 
  • the relationship of a farm worker to the restaurant chain that buys the produce; 
  • the unquestionable employees, who choose for strategic reasons to characterize their relationship with their employer (say, a restaurant) as something other than a contract of employment. 


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