Lawyer Kipkorir: M-Pesa Agents Should File Suit To Be Deemed Safaricom Employees And Earn The Big Salaries

By Donald Kipkorir

Deuteronomy 24:14-15

You shall not oppress a hired
servant …

You shall give him his wages … before the sun sets…
Our legal System was imported from England and the foundation is thus Anglo-Saxon law. In turn, Anglo-Saxon Law is rooted in Judeo-Christian traditions and beliefs. The laws and judgements of England as at August 12, 1897 are binding on our courts.

After that date, they are persuasive, strongly persuasive. Few are judges in Kenya or even in Singapore, Canada or South Africa who will demur with decisions of UK Supreme Court and House of Lords. How can a child dissent from his mother?
The recent judgment of United Kingdom Supreme Court in Uber BV & Others vs Aslam & Others, [2021] UKSC 5 in respect of whether Uber drivers are independent contractors of employees of Uber will have far reaching implication in Kenya and entire world that uses Anglo-Saxon law.

In its unanimous decision, the seven judges held that Uber drivers are employees of Uber and must enjoy full benefits that employees are entitled to.
The Supreme Court reached that decision on inter alia, the grounds that Uber drivers have no say once they download the Uber app. The court held that ordinary legislation on employment must be interpreted purposively to avoid undermining the mischief that employment laws intended to cure.

In employment contracts, employers are in a superior position of bargaining and employment laws is to create a fair bargaining position for an employee.

In Kenya, M-Pesa agents and outlets are as ubiquitous as our matatus and Boda Boda: they are everywhere. All major banks have signed onto it. Every village has an M-Pesa shop. Safaricom earns about Sh40 billion from its M-Pesa services annually. Safaricom is the owner of the intellectual proprietary rights to the M-Pesa app. Those who download it, once licensed by Safaricom have no say on the terms.

All M-Pesa agents have to pay certain agreed commission or share of profit to Safaricom. This arrangement makes Safaricom the employee of all agents of M-Pesa app.

Our employment law is derived from several sources including the Constitution, Acts of Parliament, Subsidiary Legislation and International Conventions. And the laws and case law of England as described at the beginning above.

In 2007 there was a review of the national employment laws, which had been of concern to both the Kenyan public and the Government for a long time due to the tremendous changes experienced in the local labour market such as structural adjustments, liberalisation of the economy and technological innovations.

The review was aimed at ensuring the laws were responsive to contemporary, economic and social changes, as well as achieve a new set of reformed, updated labour legislation, through a coordinated consultative process.