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ELRCDismissedNot stated in judgment· [2023] KEELRC 3100 (KLR)

Steyn v Frontier Services Group Limited; Frontier Services Group East Africa Limited (Interested Party) (Cause 1194 of 2018) [2023] KEELRC 3100 (KLR)

Employment and Labour Relations Court
27 November 2023
BOByram Ongaya
1,037 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a worker's unfair termination claim because his own contract and pleadings described him as an independent contractor, not an employee.

What this practically means

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Executive summary

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The claimant, formerly Director of Logistics East Africa with the interested party under an employment agreement dated 27.03.2017, sued the respondent (the parent company) with whom he had also signed an Independent Contractor Agreement on the same date. He sought declarations that his summary dismissal by letter dated 02.03.2018 was unfair, payment of salary arrears of USD 168,000, salary to retirement age of USD 2,856,000, compensation for discrimination and for inducing breach of contract, an order that the Kenya Revenue Authority audit payments made to him, plus costs and interest. The respondent denied any employment contract with the claimant, describing itself as a stranger to the employment relationship, and noted the dispute with the interested party had been referred to an arbitrator appointed by the Institute of Arbitrators. The suit was determined on pleadings and documents by consent. The court held that parties were not in a contract of service: the claimant had himself pleaded the independent contractor agreement, whose clauses 3.1 and 10.4 expressly excluded any employment, agency, partnership or joint venture relationship. A party is bound by its pleadings and the court will not rewrite the contract or redraw the pleadings. Consequently no remedy for unfair termination could lie. The prayer against the Kenya Revenue Authority failed as KRA was not a party, and the dispute with the interested party was already in arbitration. The suit was dismissed in its entirety with each party bearing its own costs. Judgment was delivered by Principal Judge Byram Ongaya on 27th November 2023.

Key legal issues

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01

Existence of a contract of service

Holding

The parties were not in a contract of service; the claimant had pleaded an independent contractor agreement whose clauses expressly excluded employment

Reasoning

The claimant himself pleaded that he entered an independent contractor agreement with the respondent. Clause 3.1 stated the contractor is an independent contractor and nothing in the agreement would render the claimant an employee, worker or partner, and clause 10.4 excluded partnership, agency, employment or joint venture. Having pleaded that agreement, the claimant was bound by it.

p. 3
02

Entitlement to remedies for unfair termination

Holding

No remedies were available because there was no contract of employment to terminate

Reasoning

Since parties were not in a contract of service, there was no termination of employment to declare unfair. The alleged co-employment with the respondent was untenable, the dispute with the interested party having already gone to arbitration. The prayer against KRA failed because KRA was not a party. The suit therefore collapsed entirely.

p. 3

Legal principles established

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  • A party is bound by its own pleadings; a claimant who pleads an independent contractor relationship cannot resile from it to claim employment remedies.
  • The court will not rewrite the parties' contract or redraw the pleadings.
  • Orders cannot be directed against a non-party such as the Kenya Revenue Authority.

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour disputes (Employment and Labour Relations Court Act; not expressly cited in the judgment)

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, "Steyn v Frontier Services Group Limited; Frontier Services Group East Africa Limited (Interested Party) (Cause 1194 of 2018) [2023] KEELRC 3100 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3100/eng@2023-11-27

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