Nakia J. White v Centre for Rights Education And Awareness [2022] KEELRC 449 (KLR)
The bottom line
#A Kenyan court ruled that a consultant's contract, not her job-permit paperwork, defined her status — and the organisation still had to pay for terminating her without the required 30 days' notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee or a consultant for service
The claimant was a consultant for service, not an employee; the express terms of the written consultancy contract, the payment of 20% withholding tax rather than PAYE, and the absence of evidence of daily supervision prevailed over the reference to 'an employee' in the work-permit application
The court applied the principle that it looks beyond the label to the parties' intention as shown by declarations and conduct, but found no evidence triggering any exception to the parole evidence rule under Sections 97 and 98 of the Evidence Act. Clause 8 expressly stated the agreement was not for engagement of an employee. The monthly sum was subject to withholding tax, not PAYE, consistent with consultancy fees, and there was no proof of daily supervision or employee benefits.
Whether the respondent breached the contract by terminating it forthwith
Yes - Clause 12 required thirty (30) days' prior written notice, but the respondent terminated the contract forthwith and with immediate effect, and failed to prove the claimant's breach
The court held the notice clause prepares the other party for termination, more so for an expatriate consultant who must make arrangements to leave a foreign country. The respondent produced no evidence of any process conducted to prove the claimant's breach, so the summary termination without notice amounted to a breach of contract entitling the claimant to damages.
Whether the claimant is entitled to the reliefs sought
Partially - the claimant received one month's salary in lieu of notice, salary for six days worked in October 2014, general damages equivalent to four months' salary, interest and costs, rather than the 12 months' compensation and payment for the remainder of the contract claimed
Having found a contract for service rather than employment, the court awarded contractual notice pay and general damages for breach rather than Employment Act compensation. It asserted jurisdiction to grant specific performance of a labour-related service contract but in the event awarded damages of four months' salary.
Legal principles established
#- In determining whether a party is an independent contractor or an employee, the court is not bound by the four corners of the contract but must discern the parties' intention from their declarations and conduct
- Where the terms of a contract are reduced to writing, the document itself is the sole evidence of its terms absent a proven statutory exception to the parole evidence rule
- A letter applying for a work permit describing the claimant as 'an employee' does not suffice to nullify the express terms of a written contract for service
- This Court has jurisdiction to decree specific performance of a labour-related service contract by compelling the party in breach to perform its contractual obligations
Court orders
#- 1.Respondent to pay the claimant one month salary in lieu of notice Kshs 187,000
- 2.Respondent to pay salary for 6 days worked in the month of October, 2014 in the sum of Kshs 37,200
- 3.General damages equivalent to four months' salary for breach of the contract for service in the sum of Kshs 748,000
- 4.Interest at Court rates from date of judgment till payment in full
- 5.Costs of the suit to the claimant
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act 2014 as read with Article 162(2)(b) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nakia J. White v Centre for Rights Education And Awareness [2022] KEELRC 449 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/449/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.