Amur v Seven Four Eight Air Services Kenya Limited & another (Cause 1461 of 2015) [2023] KEELRC 1285 (KLR)
The bottom line
#A Kenyan court ruled a freelance pilot was not an employee and could not recover crash damages, while his employer's counterclaim also failed entirely.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an Employee of the Respondents
The Claimant failed to establish an employment relationship; he was a freelance, independently contracted pilot
The Claimant produced no letter of employment, payslip, bank statement or other proof of the alleged USD 6,500 monthly salary. He conceded the Respondents did not instruct him how to fly and that he was not under their control. There were no employee benefits such as pension, insurance or leave. The letter by the 2nd Respondent's Administration Manager describing him as an employee was inconclusive, as the same officer elsewhere described him as a freelance pilot, and the term was used loosely while the Respondent facilitated his hospitalization.
Whether the Respondents were liable for special and general damages arising from the crash
Liability was not established; the accident was attributable to the Claimant's own negligence and probable intoxication
The Claimant purchased 7 bottles of Heineken and 1 bottle of Gilbeys Gin on the eve of the flight and conceded he probably drank them. He admitted that if he drank the alcohol it would have been a reckless decision. The investigations report attributed the accident to pilot error on the runway. Having failed to establish employment, and given his own negligence, the claim for damages lacked merit.
Whether the Claimant was constructively dismissed
No constructive dismissal - the threshold requirement of an employment relationship was not established
Constructive dismissal requires first proof of an employer-employee relationship, then proof that the employer created intolerable conditions and was in fundamental breach, that the employee could not continue working, and that the employee resigned treating himself as fired. The Claimant proved neither the relationship nor these features, and there was no termination letter.
Whether the 2nd Respondent's Counterclaim for losses was sustainable
The Counterclaim was declined in its entirety
The medical expenses and repatriation costs were paid voluntarily on humanitarian grounds and were not repayable. The Respondent lacked locus standi to claim for crew and unidentified third parties. The aircraft ought to have been insured under the Civil Aviation (Insurance) Regulations 2009; the insurer's liquidation could not shift liability for the aircraft's value to the Claimant.
Legal principles established
#- An independent contractor is not entitled to employee benefits such as health insurance and is not subject to another's control except as permitted by contract
- The existence of an employer-employee relationship must be established before a claim of constructive dismissal can be sustained
- Payment of medical expenses on humanitarian grounds, without any understanding that it was repayable, is not recoverable by counterclaim
Court orders
#- 1.The Claim is declined
- 2.The Counterclaim is declined
- 3.No order on the costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under its constituting statute over employment claims and counterclaims (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amur v Seven Four Eight Air Services Kenya Limited & another (Cause 1461 of 2015) [2023] KEELRC 1285 (KLR)", Case Analysis (2023). Cause No 1461 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1285/eng@2023-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.