Frank Saenger v Afrikon Limited [2019] KEELRC 802 (KLR)
The bottom line
#A Kenyan court awarded a former director €68,000 in unpaid salary and notice pay after his employer failed to appear with evidence and went months without paying him.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee or an independent contractor
The Claimant was an employee under an oral contract of service, proved on a balance of probability since the respondent adduced no rebutting evidence
The court applied section 2 of the Employment Act defining a contract of service and the multi-factor tests from Martin Juma Kundu, Samuel Wambugu Ndirangu and Short v Henderson. The Claimant's testimony of a monthly salary of 8500 Euros was corroborated by CW2 and by bank statements showing payments, and the respondent chose not to adduce evidence to controvert it. The court found an oral contract of service as Operations Director from September 2012 to December 2013.
Whether the contract was unfairly terminated
Claim of unfair termination failed for lack of proof, but the court found constructive termination by the respondent's fundamental breach in failing to pay salary for about seven months
Under sections 45(2) and 47(5) of the Employment Act, the employee bears the burden of proving unfair termination. Neither party adduced evidence on compliance with sections 41, 43 and 45, so unfair termination was not proved. However, the uncontroverted evidence showed the respondent failed to pay salary for June to December 2013, a fundamental breach entitling the claimant to repudiate and treat it as constructive termination.
Whether the Claimant is entitled to the reliefs sought
Partially: one month's salary in lieu of notice (8500 Euros) and unpaid salary June–December 2013 (59,500 Euros) awarded, totalling 68,000 Euros
Having found an employment relationship and constructive termination through fundamental breach, the court awarded one month's salary in lieu of notice as the quantum of damages for breach, and the unpaid salary of 7 months at 8500 Euros per month, as these were neither disputed nor disproved by evidence.
Legal principles established
#- Where the respondent fails to tender any evidence, uncontroverted claimant evidence proves the claim on a balance of probability
- A contract of service may be oral or implied under section 2 of the Employment Act
- An employer's failure to pay salary for about seven months is a fundamental breach entitling the employee to repudiate and treat the breach as constructive termination and demand salary in lieu of notice
- The burden of proving unfair termination rests with the employee, while the burden of justifying the reason for termination rests with the employer
Court orders
#- 1.Judgment entered for the claimant against the respondent for the sum of 68000 Euros plus costs and interest at court rates from the date of filing the suit
- 2.Award subject to statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court Act (invoked by respondent on remedies); Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Frank Saenger v Afrikon Limited [2019] KEELRC 802 (KLR)", Case Analysis (2019). Cause No 677 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/802/eng@2019-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.