Are Uber and Bolt Drivers Employees Under Kenyan Law?

Kenya’s Employment Act has no test for telling an employee from an independent contractor, and no intermediate category like the “worker” status UK courts invented for Uber drivers in 2021. That gap is no longer academic. Drivers walked off Uber and Bolt platforms in November 2025, a transport workers’ union put both companies on formal notice of a constitutional petition, and a Nairobi court has just spent September 2026 unwinding the one regulation that gave drivers any statutory leverage at all. Any platform operating in Kenya, and any driver relying on the platform for a living, is now navigating a classification question the law has not actually answered.

What the Employment Act Actually Tests For

Section 2 of the Employment Act defines an “employee” as “a person employed for wages or a salary,” and a “contract of service” as an agreement, oral or written, “to employ or to serve as an employee for a period of time.” The Act does not define “independent contractor” at all, and it sets out no multi-factor test of its own for telling the two apart. That distinction is left to common law, built around control over how and when work is done, integration into the business, economic dependence, and ownership of tools and equipment, factors a Kenyan court would have to weigh case by case rather than read off a statute. No Kenyan court has yet ruled on the employment status of a ride-hailing or delivery driver specifically. The closest gig-economy precedent, the Court of Appeal’s 2024 ruling in the Meta content moderators’ case, expressly declined to decide whether the moderators were Meta’s employees, sending that question back for full trial rather than resolving it. The classification question for platform drivers in Kenya is, as of today, genuinely open.

Article 41 Does Not Need the Word “Employee”

Article 41 of the Constitution is drafted more broadly than the Employment Act. Article 41(1) gives “every person” the right to fair labour practices, and Article 41(2) gives “every worker” the right to fair remuneration, reasonable working conditions, and the right to unionise and strike, without ever using the word “employee.” That is a real textual opening for an argument that constitutional labour protections reach platform drivers regardless of how their contracts are labelled, but it is an argument, not a settled holding. A driver invoking Article 41 still has to establish the underlying facts of control and dependence that make the protection bite, the same facts a contract-of-service analysis would examine.

The November 2025 Strikes Turned This Into a Live Dispute

Drivers organised under the Amalgamation of Digital Transport Organizations switched off the Uber and Bolt apps from 3 November 2025, petitioning the Ministry of Transport over fares that had not kept pace with fuel costs, part of a pattern that included earlier 2025 strikes in April and July. Separately, on 5 November 2025, the Transport Allied Workers Union of Kenya served formal notice on Uber, Bolt, the Cabinet Secretary for Labour, the National Transport and Safety Authority, the Competition Authority of Kenya, and the Office of the Data Protection Commissioner, giving fourteen days to address grievances before filing a constitutional petition in the Employment and Labour Relations Court citing Articles 41, 46 and 47. The union’s stated grievances were commission deductions exceeding the regulatory cap, unilateral fare-setting by the platforms, arbitrary account deactivations without due process, and unauthorised processing of driver data. Whether that petition was actually filed after the notice period lapsed is not confirmed in public reporting.

What Follows Automatically if Drivers Are Reclassified

The stakes of the classification question are not abstract. Both the NSSF Act, 2013 and the Social Health Insurance Act, 2023 key their employer obligations directly to the Employment Act’s “contract of service” concept rather than setting an independent test. Under section 19 of the NSSF Act, an employer with even one employee under a contract of service must register as a contributing employer, and section 20 fixes the contribution at 6% from the employer and 6% from the employee. The Social Health Insurance Act’s section 27 splits contributors into a salaried route, a monthly payroll deduction by the employer, and a self-employed route, an annual contribution assessed by means testing, with no employer obligation on that second route at all. If a Kenyan court or the Employment and Labour Relations Court eventually found that a driver has a contract of service, NSSF and SHIF employer obligations would not need a separate legal fight, they would follow from the drafting of those two Acts as written.

The Comparative Reference Point, and Its Limits

The UK Supreme Court’s 2021 decision in Uber BV v Aslam is frequently cited in this debate and just as frequently misstated. The Court held that Uber drivers were “workers,” a UK-specific intermediate category under the Employment Rights Act 1996 that sits between full employee and genuinely self-employed contractor, entitling them to minimum wage and paid holiday but not the full range of employee protections such as unfair dismissal rights. Kenyan employment law has no equivalent middle category. A Kenyan court persuaded by Aslam’s reasoning on control and integration would currently have to find full employee status or nothing, a higher bar than the one the UK court actually had to clear, which makes the comparison useful for argument but not a reliable predictor of outcome.