Chumo v Uthabiti Africa Advisory Services Limited & another (Cause E366 of 2022) [2024] KEELRC 2652 (KLR)
The bottom line
#A Kenyan court confirmed that 'consultancy' labels don't override employment reality, but employees who resign must prove constructive dismissal with concrete evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether a consultancy contract can amount to an employment relationship
Yes - the Court looks beyond the label; the Claimant, engaged as 'Consultant' Director of Policy and Partnerships on full-time hours, was in fact an employee
The Court applied Rika J's test in Kenneth Kimani Mburu that employment is discerned from conduct rather than contractual labels. The role was integral to the employer's core business, not peripheral, and the Claimant worked full-time hours from 8.00 am to 5.00 pm Monday to Friday. The consultancy label did not alter the substance of an employer-employee relationship.
Whether the Claimant proved constructive dismissal
No - the Claimant resigned voluntarily citing adverse working conditions without evidence linking the Respondents' conduct to the resignation
Applying the Coca Cola v Ligaga principles, the employee bears the burden of proving a repudiatory breach going to the root of the contract and a causal link to the resignation. The Claimant gave no particulars of the adverse working conditions and adduced no evidence connecting the disciplinary process to his departure, so constructive dismissal was not made out.
Effect of resignation on pending disciplinary proceedings
By resigning the Claimant placed himself outside the employer's disciplinary control, rendering subsequent disciplinary proceedings a nullity
Relying on Kennedy Obala Oaga v Kenya Ports Authority, the Court held that a resignation removes the employee from disciplinary authority. Since the Claimant tendered his resignation soon after the sexual harassment allegations were first raised, the later show cause notice and disciplinary hearing were of no legal effect and did not merit the Court's attention.
Whether the Claimant proved defamation
No particulars of defamation were laid before the Court, so the defamation claim fails
Although the Claimant pleaded defamation arising from circulation of the sexual harassment allegations to colleagues and stakeholders, he did not particularise or prove the defamatory publications at trial. Without such particulars the claim could not stand, and it was dismissed along with the rest of the claim.
Legal principles established
#- The existence of an employment relationship is determined by the conduct of the parties and the nature of the engagement, not merely the label used in the contract
- An employee may place himself beyond the employer's disciplinary authority by tendering a resignation; subsequent disciplinary proceedings are then a nullity
Court orders
#- 1.The Claimant's entire claim is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chumo v Uthabiti Africa Advisory Services Limited & another (Cause E366 of 2022) [2024] KEELRC 2652 (KLR)", Case Analysis (2024). Cause No E366 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2652/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.