Are Ride-Hailing Drivers Employees or Contractors? The Test Kenyan Courts Actually Use

No Kenyan court has yet ruled directly on whether an Uber, Bolt, or Little Cab driver is an employee or an independent contractor. That gap has not stopped the question from becoming a live dispute: a transport workers’ union has threatened litigation over it, and Kenyan courts have repeatedly applied a settled test to disguised-employment arrangements in other sectors that would apply just as readily to a ride-hailing platform if a driver brought the right case. Understanding that test matters now, before a platform-specific ruling forces the issue.

The test Kenyan courts actually use

Kenya’s Employment and Labour Relations Court has consistently looked past the label a contract gives a working relationship and examined its substance. In Mathenge v Tokea Solutions Limited & another [2026] KEELRC 537, decided in February 2026, the court held that a person engaged as a “permanent consultant,” but receiving medical cover and working under a director’s day-to-day supervision, was in a contract of service rather than an independent contracting arrangement, expressly invoking the substance-over-form principle and ILO Recommendation No. 198 on the employment relationship. Similarly, in Adhiambo v Eidu Education Limited [2025] KEELRC 2276, decided in July 2025, a “consultancy agreement” was found to disguise employment where the claimant kept her job title, salary, fixed hours, and worked under supervision throughout the engagement. Neither case involved a ride-hailing platform, but both illustrate the factors a Kenyan court will weigh regardless of sector: the label the parties chose is a starting point, not the answer; what matters is the degree of control exercised, whether the person is integrated into the business’s operations, and whether the overall factual picture looks like employment.

Why this test maps onto ride-hailing platforms

Applying that test to a ride-hailing platform means asking questions the platforms themselves would rather not have asked in court: who sets the fare and can the driver negotiate it; who can deactivate a driver’s account and on what grounds; who dictates acceptance rates, routes, or ratings thresholds; and whether the driver is free to work for a competing platform simultaneously. The more control a platform exercises over these variables, the harder it becomes to maintain that the relationship is a genuine independent contracting arrangement rather than a disguised employment relationship dressed up in platform terms and conditions. This is precisely the substance-over-form inquiry Kenyan courts have already applied in other disguised-consultancy contexts; a ride-hailing case would not require a new legal test, only the application of an existing one to a new fact pattern.

A live dispute, not yet a case

In November 2025, the Transport Workers Union Kenya issued a formal pre-litigation notice to Uber B.V., Uber Kenya Limited, Bolt Operations OÜ, and Bolt Kenya Limited, together with several state agencies, giving fourteen days to respond and threatening a constitutional petition in the Employment and Labour Relations Court. The union’s allegations included commission deductions above the regulatory cap, unilateral fare-setting, deactivation without due process, and unlawful data collection, framed around Articles 41, 46, and 47 of the Constitution. As of this writing, no petition appears to have been filed and no case number or judgment exists; the dispute remains at the pre-litigation stage. Separately, a Senate bill, the Business Laws (Amendment) Bill, No. 51 of 2024, has been publicly linked by some labour commentators to gig-worker classification, but its actual text amends the Employment Act’s definition of “employee” to cover business-process-outsourcing and remote IT-enabled workers specifically, not ride-hailing or platform drivers. That distinction matters: citing the bill as if it already addressed platform-driver status would overstate what it actually does.

A comparative data point, not a Kenyan precedent

The UK Supreme Court’s decision in Uber BV and others v Aslam and others [2021] UKSC 5 held that Uber drivers were “workers” under UK law, a third status between employee and independent contractor that does not currently exist under Kenya’s Employment Act, 2007, which recognises only employees and non-employee contractors. The UK court’s reasoning, focused on Uber’s control over fares, ride allocation, and driver conduct, is instructive as comparative authority and mirrors the control-based analysis Kenyan courts already apply, but it carries no binding force in Kenya and no Kenyan court has adopted or applied it to date.

What this means for platforms and drivers now

Until a Kenyan court rules on a ride-hailing case directly, platforms operating in Kenya should assume that a sufficiently control-heavy driver arrangement carries real litigation risk under the existing substance-over-form test, not comfort from the absence of a platform-specific precedent. For the regulatory side of platform compliance, including licensing, insurance, and the commission cap that has itself recently been challenged in court, see our companion piece on Regulating Ride-Hailing and Delivery Platforms in Kenya.