Krijnen v Nas Airport Services Ltd (Cause E031 of 2021) [2023] KEELRC 2390 (KLR)
The bottom line
#A Kenyan court ruled that calling an employee a 'consultant' doesn't change reality, awarding over Ksh 5.7 million for unfair treatment and unpaid dues.
What this practically means
#Executive summary
#Key legal issues
#Nature of the engagement from 1/1/2020 - employment or consultancy
The purported consultancy agreement was in substance a contract of service; an employer-employee relationship existed from 1/1/2020 to 23/3/2020
The agreement preserved the Claimant's overall management responsibility, direct reporting to the General Manager, the same office, equipment and duties, and the same net salary merely invoiced and subjected to 5% withholding tax. Applying dictionary definitions and the substance-over-form tests in Mandela and Eldoret Aviation, the court found a contract of service rather than a contract for services.
Whether termination was unfair
Termination without notice under Section 35(c) and without a hearing was unfair
The Claimant, continuously employed on contracts since 1/1/2011, was given no notice of termination and no opportunity to be heard before his contract was terminated on 23/3/2020. Such termination contravened Section 45(4)(b) of the Employment Act and principles of justice and equity, and the court so declared.
Payment in lieu of 11 untaken leave days
Awarded ksh. 484,271; the Respondent failed to prove forfeiture and bears the record-keeping burden under Section 74(f)
The Claimant testified the leave was to be taken before 31/8/2020 and produced the extension letter dated 27/9/2019. The Respondent did not demonstrate the days were taken or forfeited, and Section 74(f) obliges the employer to keep leave records. The computation was not disputed.
Whether the 25% salary cut claim was time-barred
Not statute-barred; the salary reduction was a continuing injury under Section 90 and the suit was filed within 12 months of its cessation
The Respondent did not prove the Claimant consented to the reduction effected by the letter dated 4/5/2015, nor that the contract was revised in consultation with him as required by Section 10(5). Because the reduction continued until March 2020, it constituted a continuing injury, and the suit filed on 12/2/2021 fell within the 12-month window.
Legal principles established
#- A court determining whether a contract is one of service or a consultancy agreement must look at the substance and content of the agreement, not the labels used
- An employer cannot evade employer obligations merely by labelling a contract a consultancy and requiring the employee to invoice for salary
- Salary reduction requires consultation with the employee and a written revised contract under Section 10(5) of the Employment Act; an unconsented reduction is a continuing injury under Section 90
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for unpaid leave days of ksh. 484,271
- 2.Judgment for the Claimant for 24 months' salary deductions of ksh. 5,241,600 (total award ksh. 5,725,817)
- 3.Interest on the awarded sum at Court rates from the date of filing suit until payment in full
- 4.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act; statement of claim filed in the ELRC)
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.
- Adhiambo v Eidu Education Limited (Cause E582 of 2021) [2025] KEELRC 2276 (KLR)[2025] KEELRC 2276 (KLR)31 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Krijnen v Nas Airport Services Ltd (Cause E031 of 2021) [2023] KEELRC 2390 (KLR)", Case Analysis (2023). Cause E031 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2390/eng@2023-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.