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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 46 (KLR)

Taylor v Bedi Investment Limited & another (Cause E107 of 2021) [2022] KEELRC 46 (KLR)

Employment and Labour Relations Court
27 April 2022
NMNzioki Wa Makau
1,630 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can be an employee without a written contract, but compensation covers only work actually done, not promised future earnings.

What this practically means

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Executive summary

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The Claimant, a UK-based consultant, sued the Respondents claiming he was engaged from 2018 in staggered periods totalling three months and three weeks, that his salary went unpaid, and that he was induced to relocate to Kenya through misrepresentations concerning World Bank funding. He sought notice pay, unpaid salaries, lost future salary, damages for fraud and emotional trauma, declarations of fraud and unlawful employment, a certificate of service and costs. The Respondents filed a Memorandum of Response asserting that no contract of service existed, that any engagement was contingent on World Bank/IFC funding which never materialised, that the 1st Respondent nonetheless covered accommodation and logistics, and that the 2nd Respondent was wrongly sued personally. They did not file submissions. The court, applying authority that contracts may be oral or implied and that integral duties indicate employment, found the Claimant was engaged and entitled to pay for the month worked plus notice. It held that the Respondents' declining to engage him after September 2018 amounted to constructive dismissal, but limited his recovery to salary for July 2018 and one month's notice, rejecting damages for the abrupt termination or lost long-term employment. The suit succeeded only in part. The court awarded Kshs. 440,219/- as salary for July 2018, a like sum as one month's notice, costs of the suit, and interest at court rates from filing until payment in full. Judgment was delivered at Nairobi on 27th April 2022 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Existence of a contract of service without a written contract

Holding

The court accepted an engagement existed through email correspondence and conduct, entitling the Claimant to pay for work done and notice

Reasoning

The Claimant testified he was engaged in various aspects of the 1st Respondent's apparel business, with email correspondence confirming his engagement and details of the work. Relying on authority that not all agreements need be in writing, the court found the Respondents were bound by the engagement and could not disassociate themselves on the ground that there was no written contract. However, the contractual relationship was limited in scope to what was actually worked.

p. 3
02

Constructive dismissal

Holding

Declining to engage the Claimant after September 2018 amounted to constructive dismissal, but damages were limited to one month's notice

Reasoning

The court held that the Respondents' failure to continue engaging the Claimant after September 2018 constituted constructive dismissal. Nevertheless, since the anticipated World Bank funding and long-term contract never materialised, the Claimant could not recover damages for the loss of an extended employment period. He was limited to salary for the month worked and notice pay.

p. 3

Legal principles established

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  • A contract of service may be oral, written, expressed or implied
  • An employee whose services are declined after engagement may be treated as constructively dismissed

Court orders

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  1. 1.Payment of Kshs. 440,219/- being salary for July 2018
  2. 2.Payment of Kshs. 440,219/- being one month's notice
  3. 3.Costs of the suit
  4. 4.Interest on the sums in (i) and (ii) at Court rates from the date of filing suit till payment in full

Authorities

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Legislation

  • Employment ActSection 2 (definition of Contract of Service); Part XI

Cases cited (3)

  • Mamta Peeush Mahajan [Suing on behalf of the estate of the late Peeush Premlal Mahanjan] v Yashwant Kumari Mahajan [Sued personally and as Executrix of the estate and beneficiary of the estate of the late Krishan Lal Mahajan]
    [2017] eKLR
  • Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited
    [2014] eKLR
  • Everret Limited v Kenya Revenue Authority (Through the Commissioner of Domestic Taxes)
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction over the employment claim (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Taylor v Bedi Investment Limited & another (Cause E107 of 2021) [2022] KEELRC 46 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/46/eng@2022-04-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.