Peter Kaili v Malken Housing Systems Limited [2014] KEELRC 14 (KLR)
The bottom line
#A Kenyan court ruled that an employee who claims they were forced to resign can still sue for unfair termination, and the case must be heard in full.
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's suit fails to disclose a reasonable cause of action known in law against the respondent
- 2.Whether the suit is scandalous, frivolous, vexatious and an abuse of the court process
- 3.Whether the claimant's resignation was voluntary or vitiated by undue influence, and whether that raises triable issues
Key legal issues
#Whether a claimant who resigned and signed a clearance certificate can maintain a claim for unfair termination
Yes - the claim discloses a reasonable cause of action where the claimant alleges the resignation was procured by undue influence
The court read section 35 of the Employment Act as creating a wide scope for termination, including by notice or resignation, but section 35(4) preserves the employee's statutory right to dispute the lawfulness or fairness of termination under section 46. The claimant's allegation that he was coerced into writing the resignation letter could not be wished away at the interlocutory stage without hearing evidence.
The proper threshold for striking out a suit in limine
Striking out is a drastic summary remedy granted only in the clearest of cases, with extreme caution, so that a litigant is not driven from the seat of justice without being heard
Relying on the authorities cited by the parties, the court held that summary dismissal is only appropriate where a claim is on its face obviously unsustainable. Where allegations such as undue influence vitiate the resignation and require examination of evidence, the matter must proceed to trial on the merits rather than being determined on affidavit material.
Whether the preliminary objection/application was properly raised
Improper raising of preliminary points increases costs and confuses issues, a practice that should be estopped
Adopting Sir Charles Newbold's words in Mukisa Biscuits, the court cautioned against the improper use of preliminary objections. The respondent's application, which required the court to delve into matters of evidence regarding the validity of the resignation, was improper and had to be dismissed with costs to the claimant.
Legal principles established
#- Section 35(4) of the Employment Act preserves an employee's right to dispute the lawfulness or fairness of termination in accordance with section 46, even where employment ended through resignation or notice
- A suit may only be struck out in the clearest of cases; where triable issues appear on the pleadings, the matter must go to full hearing
Court orders
#- 1.The respondent's Notice of Motion dated 25th April 2014 seeking to have the suit dismissed in limine is dismissed
- 2.Costs of the application to the claimant
- 3.The suit to proceed to full hearing, with parties to be heard on merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3, 12 and 20 of the Industrial Court Act; Articles 41 and 159(2)(b) of the Constitution
Relief refused
#Dismissal of the claimant's suit in limine as disclosing no reasonable cause of action and as scandalous, frivolous and an abuse of process
The claimant's assertion in his Replying Affidavit that he was forced to resign raised triable issues on the lawfulness or fairness of the termination under section 35(4) and section 46 of the Employment Act; striking out is reserved for the clearest of cases
Costs
Costs to the claimant.
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.
Application dated 25th April 2014 by the respondent is hereby dismissed. Costs to the claimant.
the suit should be heard by call of evidence. Parties will be heard on merit.
Where the claimant is seeking to challenge the lawfulness or fairness of the termination there is a reasonable cause of action based in law that the court must address.
To terminate the proceedings at this point without the court calling evidence in this regard would be to circumvent the cause of justice and create injustice at the very seat of justice.
Issues in the judgment
#The judgment's opening refers to 'Time magazine international Limited' as the respondent's counsel's authority in submissions, but the supporting affidavit describes the respondent as the employer of the claimant; the judgment does not print the name of the suit itself, so the respondent's name is inferred from the application context and the cited case name
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kaili v Malken Housing Systems Limited [2014] KEELRC 14 (KLR)", Case Analysis (2014). Notice of Motion dated 25th April 2014 (suit filed 5th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/14/eng@2014-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.