Mutai v Kisa & another (Cause E002 of 2020) [2022] KEELRC 1543 (KLR)
The bottom line
#A Kenyan court ruled that calling someone a 'consultant' doesn't make it true—if they work like an employee, they get employee protections, including when unpaid salary forces them out.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee or an external consultant from January 2019 to November 2019
The Claimant proved on a balance of probability that he ceased being an external consultant in October 2018 and became a full-time employee of the Respondents from January to November 2019.
The court applied the multi-factor test from Everret Aviation v KRA: the Claimant's services were integral to the Rose farm project and were integrated into the enterprise. He was under the control of the 1st Respondent, filed weekly and monthly reports, needed permission to be absent, worked at the Respondent's farm, was given a laptop, motor vehicle, and supervised at least 20 employees. He was paid a fixed Kshs. 235,000 monthly without withholding tax deduction, consistent with salaried employment rather than independent consultancy. The email forwarding a draft contract of employment corroborated the agreed transition to full-time employment.
Whether the Claimant's resignation amounted to constructive dismissal
The resignation was not voluntary; it amounted to constructive dismissal, which is unfair dismissal within the meaning of Section 45 of the Employment Act.
The court applied the principles in Coca Cola v Ligaga, noting the contractual and unreasonable tests. The Claimant was denied his September and October 2019 salary without lawful cause, communication was cut, and the vehicle aiding his movement was repossessed. Withholding salary without excuse is a fundamental breach of an integral term of the employment contract; the employee is entitled to deem the contract repudiated. The Respondents tendered no evidence to rebut this. Constructive dismissal demands the employee prove the resignation was justified, which was done.
What reliefs flow from the finding of constructive and unfair dismissal
Unpaid September and October 2019 salary of Kshs. 470,000, one month's salary of Kshs. 235,000 as compensation under Section 49(1) read with Section 50 of the Employment Act, pro-rata leave of 17.5 days valued at Kshs. 116,666.66, and a certificate of service were granted; the reimbursement claim failed for want of receipts.
The court quantified the unpaid salary at Kshs. 235,000 per month for two months. In exercising discretion under Section 49 it considered the short duration of service (less than one year) and the absence of a valid reason for termination. Leave was computed on the statutory minimum of 21 days per year since there was no written contract for more, prorated over 10 months. The certificate of service was mandatory under Section 51 as the employee served over four weeks consecutively. The reimbursement claim lacked documentary proof.
Legal principles established
#- There is no single test for determining employment; the control test is only one factor and the modern approach is to balance all relevant factors including control, integration, method of payment, tax treatment, provision of tools and who bears the risk of loss.
- Withholding an employee's salary without lawful excuse is a fundamental/repudiatory breach justifying resignation, and the resignation is treated as constructive dismissal.
- The burden of proving constructive dismissal lies on the employee, who must demonstrate that the resignation was justified.
Court orders
#- 1.Judgment entered for the Claimant in the sum of Kshs. 821,666 subject to statutory deductions
- 2.Award of Kshs. 470,000 being unpaid salary for September and October 2019
- 3.Award of Kshs. 235,000 being one month's salary as compensation for unfair termination under Section 49(1) read with Section 50 of the Employment Act
- 4.Award of Kshs. 116,666.66 in lieu of 17.5 pro-rata accrued leave days
- 5.Claimant to be issued with a certificate of service
- 6.Claimant awarded costs of the suit plus interest at court rate from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, Labour Institutions Act)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muendo & 33 others v Quality Inspectors Limited (Employment and Labour Relations Cause 230 of 2018) [2023] KEELRC 2704 (KLR)[2023] KEELRC 2704 (KLR)28 Sept 2023applied
Cite this brief
#Cite this brief
Caselaw, "Mutai v Kisa & another (Cause E002 of 2020) [2022] KEELRC 1543 (KLR)", Case Analysis (2022). Cause No E002 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1543/eng@2022-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.