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ELRCPartially AllowedNot stated in the judgment provided· [2024] KEELRC 2346 (KLR)

Mwenda v Afri Business LLP & another (Cause E409 of 2020) [2024] KEELRC 2346 (KLR)

Employment and Labour Relations Court
30 September 2024
JGDR. JACOB GAKERI
3,290 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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A Kenyan court awarded a consultant Kshs.168,740 and a certificate of service, but threw out bigger claims because he had no documents proving them.

What this practically means

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Executive summary

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The Claimant sued alleging breach of a consultancy agreement dated 16th May 2017 under which he served as a Consulting Director earning Kshs.150,000/= monthly. He claimed he was underpaid in December 2017 (receiving Kshs.55,000/=), unpaid from January to April 2018, and that PAYE deducted from his salary was never remitted to KRA, frustrating his resignation and denial of a Tax Compliance Certificate. He sought Kshs.695,000/=, piercing of the 1st Respondent's corporate veil to hold the 2nd Respondent liable, mandatory injunctions compelling remittance and issuance of a certificate of service, punitive damages of Kshs.1,000,000/= and general damages. The Respondents maintained the relationship ended by mutual separation effective 31st January 2018, with a computation of Kshs.223,740/= of which only Kshs.168,740/= remains outstanding, and objected to the joinder of the 2nd Respondent. The Court framed two issues: whether there was constructive dismissal or mutual separation, and entitlement to relief. Applying Western Excavating v Sharp and Coca Cola v Ligaga, it found constructive dismissal unsubstantiated for lack of verifiable evidence of resignation, and noted the Claimant's email follow-ups on final dues covering only December 2017 and January 2018, uncontested at Kshs.223,740/= less Kshs.55,000/= received. The Court awarded Kshs.168,740/= with interest from filing, and a certificate of service under Section 51 of the Employment Act, but declined the Kshs.695,000/= claim, veil-piercing, mandatory injunctions and damages for want of proof. The claim was otherwise dismissed. The final orders are silent on costs.

Key legal issues

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01

Whether the Claimant was constructively dismissed or the parties entered into a mutual separation agreement

Holding

The Court was not persuaded that constructive dismissal was proved; the evidence of email follow-ups on final dues suggested the relationship had ended and the only outstanding sum was Kshs.168,740/=.

Reasoning

The Court adopted Lord Denning MR's contractual test in Western Excavating v Sharp and the domesticated principles in Coca Cola v Ligaga, placing the burden on the employee. The Claimant gave no verifiable evidence of his alleged resignation. Email correspondence showed him following up final dues covering only December 2017 and January 2018, computed at Kshs.223,740/= less Kshs.55,000/= received, and he did not contest the computation, undermining the claim of unpaid salary through April 2018.

p. 7
02

Whether the Claimant is entitled to the reliefs sought

Holding

Partially: Kshs.168,740/= with interest and a certificate of service were awarded; the balance of the prayers was declined for want of proof.

Reasoning

The Kshs.695,000/= claim lacked evidentiary support. Lifting the corporate veil against the 2nd Respondent failed under Salomon v Salomon as no fraud or impropriety was proved. Mandatory injunctions, punitive and general damages were not demonstrated. However, Section 51 of the Employment Act entitles an employee to a certificate of service regardless of the outcome of the other heads.

p. 7

Legal principles established

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  • Constructive dismissal requires proof of a repudiatory breach going to the root of the contract, with the burden on the employee.
  • A certificate of service is an employee's statutory entitlement under Section 51 of the Employment Act.
  • An employee's uncontested computation of final dues evidences the sums actually owing on separation.

Court orders

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  1. 1.Award of Kshs.168,740/= with interest from date of filing till payment in full
  2. 2.Issuance of a certificate of service to the Claimant
  3. 3.Dismissal of the Claimant's case for want of proof save for the two awards above
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and consultancy/contract of service disputes (Employment Act; claim of breach of consultancy agreement and non-remittance of PAYE)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwenda v Afri Business LLP & another (Cause E409 of 2020) [2024] KEELRC 2346 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2346/eng@2024-09-30

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