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ELRCDismissedELRC Cause No. 957 of 2018· [2023] KEELRC 1811 (KLR)

Sang & another v Bechy Tours and Travels Limited (Cause 957 of 2018) [2023] KEELRC 1811 (KLR)

Employment and Labour Relations Court
27 July 2023
JGJacob Gakeri
3,204 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a consultant claiming unfair dismissal must prove employee status first, and delaying complaints can fatally undermine the claim.

What this practically means

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Executive summary

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The Claimants sued the Respondent alleging constructive dismissal, claiming they were engaged as Tours and Travel Consultants from March 2017 to April 26, 2018 at a gross salary of Kshs 70,000/= per month each, without written contracts, and that from December 2017 the Respondent stopped paying salaries, harassed and intimidated them, and failed to remit statutory deductions, prompting their resignation. They sought a declaration of constitutional violation, Kshs 1,285,262.46 in various heads, certificates of service and costs. The Respondent denied employment, asserting the Claimants were engaged as consultants under an agreement dated February 28, 2017 signed by team leader Ms Azmina Abdalla, performed poorly, and resigned voluntarily; it counter-claimed Kshs 2,048,986.40 as losses incurred on the strength of their projections. The court framed three issues: nature of engagement, constructive dismissal, and entitlement to reliefs. It found the Claimants were engaged collectively as consultants, not employees, citing paragraph 3 of the Statement of Claim, the consultancy agreement's conferral of control over means and manner of performance, and the absence of contractual essentials under Section 10 of the Employment Act. Applying the contractual test for constructive dismissal from Coca Cola v Ligaga and Western Excavating v Sharp, the court held no repudiatory breach was proved, complaints having been raised too late (acquiescence) and harassment allegations unsupported. The counter-claim failed for want of evidence of the alleged commitments and losses. Both the suit and the counter-claim were dismissed with each party bearing own costs. The Claimants filed no submissions.

Key legal issues

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01

Employee versus consultant

Holding

The Claimant failed to prove she was an employee; the evidence showed engagement as consultants under an agreement signed by the team leader

Reasoning

The court traced how the Claimant was engaged, noting the agreement dated February 28, 2017 signed by team leader Azmina Abdalla, the absence of a defined work schedule, and paragraph 3 of the contract giving consultants control over means and manner of performance. Applying Section 10 and Section 2 of the Employment Act and the Rika J. criteria, the court found no essential characteristics of a contract of employment.

p. 6
02

Constructive dismissal

Holding

No repudiatory breach was demonstrated; the constructive dismissal claim fails

Reasoning

Applying the contractual test in Coca Cola v Ligaga (adopting Western Excavating v Sharp), the court found the resignation letter's complaints (new targets, employment letter, insurance, deductions, late pay) unclear in timing and terms, and issues raised too late, amounting to acquiescence. Allegations of harassment were never raised with the Respondent nor supported by evidence.

p. 7
03

Counter-claim for loss of Kshs 2,048,986.40

Holding

Counter-claim unproved and dismissed

Reasoning

The Respondent alleged it suffered losses based on commitments entered into on the strength of the Claimants' projections, but adduced no evidence of the commitments, the counterparties, the amounts or how the loss occurred, either in its written statement or oral testimony.

p. 7

Legal principles established

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  • The test for constructive dismissal is the contractual test based on repudiatory breach
  • A consultant performs work according to his own processes and methods and is not subject to another's control
  • Delayed complaint about contractual terms amounts to acquiescence

Court orders

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  1. 1.The counter-claim is dismissed
  2. 2.The suit is dismissed
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Employment ActSection 10
  • Employment ActSection 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Razzel v Snowball
    (1954) 3 ALL ER 429
  • Ngararia Girls Secondary School V Kudheiha Workers
    (2017) eKLR
  • Kenneth Kimani Mburu & another v Kibe Muigai Holdings Ltd
    (2014) eKLR
  • Coca Cola East and Central Africa Ltd V Maria Kagai Ligaga
    (2015) eKLR
  • Western Excavating (ECC) Ltd v Sharp
    (1978) QB 761
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims and counter-claims

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, "Sang & another v Bechy Tours and Travels Limited (Cause 957 of 2018) [2023] KEELRC 1811 (KLR)", Case Analysis (2023). ELRC Cause No. 957 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1811/eng@2023-07-27

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