Geoffrey Gitau Wainoga v Goal South Sudan [2019] KEELRC 1294 (KLR)
The bottom line
#Kenya's Employment Court ruled an employer must pay Kshs.8.9 million in back pay after skipping the legal formalities for foreign employment contracts.
What this practically means
#Executive summary
#Key legal issues
#Inducement and misrepresentation by non-compliance with statutory formalities
Although fraud, coercion and mistake were not proved, the employer's failure to comply with mandatory statutory provisions on foreign contracts made it strictly liable for inducement and misrepresentation.
The Court found the parties were aware of the terms and no fraud existed at formation. However, section 23 of the repealed Employment Act created an offence against the employer for concluding foreign contracts without statutory formalities. This imposed a duty on the employer to ensure compliance. The undisputed failure to attest the contract under section 20 rendered the respondent strictly liable for unfairly misleading the claimant, independent of intent.
Consequences of illegality - unenforceability versus protection of the employee
The illegal foreign contract is unenforceable against the defaulting employer but enforceable and voidable at the instance of the employee, and liable to rectification.
Applying the ex turpi causa principle and the Quinn v Irish Bank Resolution Corporation criteria as discussed by Eugene F. Collins, the Court held that the statute did not expressly void such contracts; the policy of the Employment Act is to protect employees with minimum statutory terms. Declaring such contracts void in every case would expose employees disproportionately. The duty-bearer employer should not benefit from its own breach of statutory duty.
Rectification of the contract to expatriate terms and quantum of underpayment
The contract was rectified so that the claimant, a Kenyan national who served as Medical Supervisor in South Sudan, is treated as an expatriate; the expatriate Field Supervisor was a reasonable comparator and the underpayment of Kshs.8,885,972.00 was not disputed.
The evidence showed the claimant was placed on national terms despite being a Kenyan national entitled to a foreign contract of service. The respondent did not dispute the computation of the salary difference; it only challenged the comparator. The Court found the Field Supervisor comparator reasonable given the claimant's deployment as a Medical Supervisor in the field.
Constitutional claims of racial discrimination and cruel treatment
The claims under sections 74 and 82 of the former Constitution failed for want of evidence.
The claimant's main complaint was unequal pay, but there was no evidence that the failure to pay him as an expatriate was on account of his race, or of other racial diversities showing he was lowly paid because he was African or of Kenyan extraction. Nor was there evidence of cruelty or unfair treatment. The constitutional claims were therefore not made out.
Legal principles established
#- Where a foreign contract of service fails mandatory statutory formality of attestation, the contract is null and void and unenforceable at the instance of the defaulting employer but enforceable and voidable at the instance of the employee.
- A statute creating an offence against the employer for non-compliance places the duty of compliance on the employer, and non-compliance renders the employer strictly liable for inducement and misrepresentation.
Court orders
#- 1.Declaration that the foreign contracts of service between the parties violated the provisions of the Employment Act (Repealed) on conclusion of foreign contracts of service
- 2.Declaration that between 14.01.2002 and February 2005 the claimant was employed by the respondent as an expatriate employee and the contracts between the parties are liable to rectification from service as a national to service as an expatriate
- 3.The respondent to pay the claimant a sum of Kshs.8,885,972.00 by 01.09.2019 failing interest to be payable thereon from the date of filing the suit till full payment
- 4.The respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Original employment and labour relations jurisdiction over a claim arising from contracts of service governed by Kenyan law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Gitau Wainoga v Goal South Sudan [2019] KEELRC 1294 (KLR)", Case Analysis (2019). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1294/eng@2019-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.