Merita Akinyi Ombuor v Skyjet Aviation Uganda Limited [2019] KEELRC 1715 (KLR)
The bottom line
#A Kenyan court confirmed an unsigned employment contract is still valid, awarding a former CEO USD45,500 despite her bigger claim failing.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid employment relationship existed between the claimant and the respondent despite the unsigned contract
Yes - although the written contract was signed only by the claimant, an employment relationship may be inferred from the parties' conduct, including email correspondence and payments
The Court of Appeal in Kenya Airways Ltd v Satwant Singh Flora held that a contract of employment may be inferred from conduct. Section 2 of the Employment Act defines a contract of service as an agreement oral, written, expressed or implied. The email correspondence about the claimant's salary and her work preparing Skyjet operations, together with payments of USD1,000 in December 2009 and January 2010, confirmed the claimant was engaged by the respondent at least as to salary.
Whether the claimant's contract was still in force at the date of judgment
No - the contract was terminated in February 2010 when the respondent stopped communicating with and paying the claimant
The claimant testified the respondent stopped communicating with her in February 2010 and she was last paid salary in January 2010. The contract was therefore frustrated and/or repudiated by the respondent in February 2010, entitling her to terminate for breach. The contract could not be presumed to persist beyond that date when she stopped communicating with and working for the respondent.
Whether the claimant was entitled to the reliefs sought
Partially - salary for the period worked (USD17,500) and six months' pay in lieu of notice (USD30,000), less USD2,000 already paid; all other prayers dismissed as unproved
Having found the claimant worked from 16th November 2009 to February 2010, she was entitled to salary for that period of USD17,500. Her contract provided for six months' notice of termination, entitling her to USD30,000 in lieu. The claims for pension, house allowance, vehicle reimbursement and medical/insurance refund were not proved and were dismissed given she worked hardly three months.
Legal principles established
#- A contract of service need not be in writing and may be inferred from the conduct of the parties
- Section 2 of the Employment Act defines a contract of service to include oral or implied agreements to employ or serve
- Where an employer stops paying and communicating with an employee, the employment relationship ends at that point and cannot be presumed to persist
Court orders
#- 1.Judgment entered for the claimant against the respondent in the sum of USD45,500 (USD47,500 awarded less USD2,000 already paid)
- 2.Respondent to pay claimant's costs
- 3.Decretal sum to attract interest at court rates from the date of judgment
- Jurisdiction invoked
- Jurisdiction as the Employment and Labour Relations Court over employment and labour relations claims (Employment Act, Section 35 referred to); no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Merita Akinyi Ombuor v Skyjet Aviation Uganda Limited [2019] KEELRC 1715 (KLR)", Case Analysis (2019). Cause No 263 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1715/eng@2019-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.