When Brian signed up to drive with Uber in Nairobi, he thought he had found freedom, quick pay, and a chance to be his own boss. But as fuel prices rose and Uber slashed fares, Brian realized he was not as independent as he thought. If he refused too many rides or received poor ratings, his account could be deactivated overnight.

That is the hidden dilemma of the gig economy. Platforms promise freedom and flexibility, but behind the scenes, strict performance reviews make gig workers feel more like employees than independent contractors. Kenya’s Employment Act was not built for this new reality, leaving freelancers and platform workers in a legal grey zone.

Why the Gig Economy Matters in Kenya

The rapid growth of digital platforms like Uber, Bolt, Glovo, and Fiverr have transformed Kenya’s job market in profound ways. For many young people, they offer much needed opportunities in a tough age of massive unemployment, yet this new model of work challenges the traditional legal categories of employee versus independent contractor. Without clarity, gig workers risk being excluded from protections like minimum wage, union membership and paid leave days.

Tests for Determining Work Status in Kenya

The Employment Act of 2007 defines an employee as a person working for wages or salary and includes an apprentice and indentured learner The Act makes little room for workers who fall outside this definition, but Kenyan courts have developed multiple tests to determine whether a person is to be considered an employee or a self-employed independent contractor, including:

  • The Control Test: From Stanley Mungai Muchai v National Oil Corporation of Kenya [2012], this asks whether the employer controls the working hours, time and place where a worker does their job.
  • The Integration Test: Examines if the worker is part of the enterprise or operates independently.
  • The Economic Dependency Test: Looks at whether the worker relies on a single entity for their income or serves multiple clients.

These tests are increasingly being applied to digital work arrangements, but a single classification for gig workers is yet to be provided for in Kenya’s labour regulations.  

The Gig Worker’s Classification Dilemma

On the surface, freelancers and gig workers resemble independent contractors. They often own their tools like smartphones, cars, or laptops and may offer their services to more than one client. The confusion regarding the status of gig workers arises mainly due to the level of control that digital platforms exercise over prices, performances, and the punishment of notorious accounts. 

This tension is evident in the ongoing case of Motaung v. Samasource Kenya EPZ Limited t/a Sama & 2 others (2023), where the court was asked to examine whether digital content moderators could be considered employees. Similarly, the recurring strikes by ride hailing drivers over low pay highlight a clear need for determining rights and obligations of gig workers in Kenya. 

Lessons from Abroad: The UK Uber Case

One proposal for addressing the lack of clarity surrounding the status of gig worker is to draw lessons from the UK Supreme Court’s decision in Uber BV and others v Aslam and others (2021). In that case, the court found that Uber drivers were neither independent contractors nor employees but instead fit into a middle ground classified as workers due to the significant level of control the platforms had over their work.

This classification granted UK Uber drivers entitlements such as minimum wage and annual leave. Given that Kenya’s determination of employment status largely depends on the level of control an employer exercises, future policy development should consider this approach in making reforms that affect gig workers.  

Conclusion

For Brian, driving Uber is not just a side hustle, it is his livelihood. The question is whether Kenya’s law will treat him as a contractor left to market forces, or as a worker entitled to fair protections. The future of Kenya’s gig economy depends on getting that balance right, not just for businesses, but for the people who keep them running.