Bluebird Aviation Limited v Mathew Njae Kearie & another [2018] KEELRC 43 (KLR)
The bottom line
#A Kenyan court ordered a pilot-turned-engineer to repay USD30,000 under a training bond after resigning early, but cleared his new employer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant 'kept on holding and delaying the 1st respondent's salary and whether the 1st respondent's salary was paid 'haphazardly and erratically'
- 2.Whether the training bond between the claimant and the 1st respondent is valid and binding inter partes
- 3.Whether there was privity of contract between the claimant and the 2nd respondent
- 4.Whether the claimant is entitled to the relief sought
- 5.Who bears the costs of this claim
Key legal issues
#Whether delayed or erratic salary payments and widened duties frustrated the employment contract
The claimant did not delay salary or allocate uncontracted duties; the 1st respondent's defence was a fabrication to justify his abrupt resignation
The claimant filed a schedule of salary payments contradicting the 1st respondent's allegations, supported by the witness statement of Noor Maalim Adan. The court found no evidence of frustration of contract through delayed payments or unconventional allocation of duties and concluded the 1st respondent coined a defence to suit his case after resigning without notice.
Validity and enforceability of the Training Bond Agreement
The training bond is valid and binding inter partes; the 1st respondent's abrupt resignation within the three-year bond period breached it, triggering reimbursement of USD30,000
The bond was supplemental to the employment contract and required the employee to stay three years so the employer could recoup its investment. The court rejected technical objections (retrospectivity, the advocate witness, the Advocates Practice Rules) holding the employee could not escape contractual obligations through technicalities absent proof of duress or undue influence, invoking Article 159(2)(d) of the Constitution.
Privity of contract and liability of the 2nd respondent for inducement of breach
The 2nd respondent was not party to the employment contract or bond; there was no evidence of any aviation industry norm or usage requiring clearance before hiring, so no liability attached to the 2nd respondent
The court agreed with the 2nd respondent that it was not privy to the contract between the claimant and the 1st respondent and that the claimant failed to discharge its burden of proving the alleged industry norm. The claimant's poaching counter-allegation ('tit for tat') further undermined its complaint. Relief was therefore confined to the 1st respondent alone.
Legal principles established
#- A training bond entered into as part of the employment relationship is valid and binding unless the employee proves it was entered into under duress or undue influence
- Liability for inducement of breach of contract requires privity considerations; a stranger to a contract cannot be held liable for its breach where no contract binds the parties
- He who alleges must prove - the burden of proving an alleged industry norm or usage rests on the party asserting it
Court orders
#- 1.A declaration that the 1st respondent unlawfully terminated the Contract of Employment inter partes
- 2.A declaration that the 1st respondent unlawfully terminated the Training Bond Agreement
- 3.A declaration that the unlawful terminations were caused, induced and or contributed to by the 2nd respondent in her taking up the 1st respondent into her employment
- 4.The 1st respondent to pay the claimant Kshs.104,739.30 being three months' salary in lieu of notice
- 5.The 1st respondent to pay the claimant USD30,000 being the contractual amount in breach of the Training Bond Agreement
- 6.The cost of the claim to be borne by the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court (employment contract and training bond dispute)
Relief refused
#Relief against the 2nd respondent (joint liability for training costs and general damages)
The court found no privity of contract between the claimant and the 2nd respondent and no evidence of any aviation industry norm requiring clearance, so liability attached to the 1st respondent alone
General damages against the 2nd respondent and interest as prayed
Not granted in the final orders; relief limited to declarations, salary in lieu of notice and training cost against the 1st respondent
Costs
The cost of the claim shall be borne by the 1st respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
He entered into a training bond and is bound by the same unless he proves that this was entered into under duress or undue influence. He cannot be heard to want to escape his contractual obligations through technicalities of the law.
The claimant is therefore entitled to relief as against the 1st respondent alone.
v. That the 1st respondent be and is hereby ordered to meet and pay a sum of US Dollars Thirty Thousand (USD30,000) to the claimant being the contractual amount in contravention and breach of the Training Bond agreement.
vi. The cost of the claim shall be borne by the 1st respondent.
Everyone has an equal right to employ workmen in his business or services; and if, by the exercise of his right in such manner as he may fit, persons are induced to leave their employment elsewhere, no wrong is done to him whose employment they leave, unless a contract exists by which such other person has a legal right to further continuance of their services.
Issues in the judgment
#The court declared that the unlawful terminations were induced by the 2nd respondent and issued a declaration against her, despite expressly holding there was no privity and that relief lay against the 1st respondent alone
The claimant's pleaded salary figure is internally inconsistent
The amount ordered (Kshs.104,739.30) does not match the pleaded three months' salary in lieu of notice (Kshs.1,047,393/-)
The judgment states the cause was heard before 'D. K. N. Marete' but is signed 'D.K. Njagi Marete'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bluebird Aviation Limited v Mathew Njae Kearie & another [2018] KEELRC 43 (KLR)", Case Analysis (2018). Cause No. 900 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/43/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.