Letters

LETTER: Donald, M-Pesa agents aren’t Safaricom staff

Mpesa-nyeri

An attendant makes an M-Pesa transaction for a customer in Nyeri. FILE PHOTO | NMG

Summary

  • The Supreme Court of the UK took its time to assess the case's facts by analysing the onboarding of a driver and various contracts that develop a sense of relationship with drivers and passengers.
  • Some drivers sign up directly with Uber, while others sign up with Uber through an independent company.
  • The drivers using an Uber app through an independent company that signed up with the Uber app are not considered an essential part of the dispute.

The convenient use of the religious books to calm and massage the subconscious mind of the desperate listener and reader in search of consolation and hope should be decreed as the eleventh sin under the Mosaic Law.

However, after the intense debate between H.L.A Hart and Sir Devlin, Dr Mark Tebbit notes that Sir Devlin admitted Christian doctrine is an inaccurate way to determine law's authority.

The laws of the United Kingdom (UK) influenced the findings in Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5 after considering the facts.

The fact, in Kenya, is that as per Safaricom's domain URL, safaricom.co.ke there is a document dated October 2013 that says a prospective M-Pesa agent must be registered as a limited liability company or at least, for specific special categories, a registered entity.

SENSE OF RELATIONSHIP

The law, rules, policies, or codes are preconditions or conditions based on a previous set of experiences or anticipated events.

In that regard, to understand the law, we must appreciate facts and that is something one can learn from Marcus Tullius Cicero.

The Supreme Court of the UK took its time to assess the case's facts by analysing the onboarding of a driver and various contracts that develop a sense of relationship with drivers and passengers.

Some drivers sign up directly with Uber, while others sign up with Uber through an independent company.

The drivers using an Uber app through an independent company that signed up with the Uber app are not considered an essential part of the dispute.

In light of the above, it is imperative to delve into what the Supreme Court considered before taking the view that drivers who sign up directly with Uber exhibit what can be defined as employer-employee relationship that provides them with certain statutory rights under the United Kingdom’s employment laws.

The employment laws play a significant role in understanding whose services are qualified to attain certain protections under the applicable laws.

In the Uber decision, the Employment Rights Act 1996 was used to determine that although not employed under employment contracts, they (drivers) were operating under workers’ contracts.

IT’S MISLEADING

In referring to the Uber case to M-Pesa’s scenario as projected in Donald Kipkorir’s article in Business Daily dubbed Why M-Pesa agents are Safaricom employees and dated March 16, 2021, it is evident that the views are entirely misleading as M-Pesa agents engage Safaricom as independent contractors to provide the services as a corporation.

In this case, M-Pesa agent refers to a business entity and not an individual, and this business entity goes ahead to secure staff to provide the services.

The term M-Pesa agent is used interchangeably with M-Pesa staff at an M-Pesa agency.

However, M-Pesa agents employ staff who are not connected to M-Pesa, the license holder.

Therefore, just like Uber drivers hired through independent companies were not essential to the Uber case, so are employees/workers under an M-Pesa agency arrangement.

Ombo Malumbe, Advocate of the High Court of Kenya