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ELRCDismissedNotice of Motion dated 25th April 2014 (suit filed 5th March 2014)

Peter Kaili v Malken Housing Systems Limited [2014] KEELRC 14 (KLR)

Industrial Court of Kenya
30 July 2014
1,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The respondent company filed a Notice of Motion dated 25th April 2014 under sections 3, 12 and 20 of the Industrial Court Act and Articles 41 and 159(2)(b) of the Constitution, seeking dismissal in limine of the claimant's suit for unfair termination and damages of Kshs.3,240,000. The respondent, through the affidavit of its Human Resource manager Abigail Mueni, contended that the claimant was employed on 1st February 2011, voluntarily resigned by notice dated 16th December 2013 stating he had no claims, received all terminal dues and signed a clearance certificate, and that his subsequent demand letter and suit filed on 5th March 2014 were frivolous, scandalous and an abuse of process, disclosing no reasonable cause of action. The claimant, in a Replying Affidavit sworn by himself, contended he was forced by a supervisor to write the resignation letter under threat that his dues would be withheld, that this undue influence vitiated the resignation, and that a suit may only be struck out in the clearest of cases, with triable issues requiring a full hearing. The court, per M. Mbaru J, held that section 35 of the Employment Act covers termination by notice or resignation, but section 35(4) preserves the employee's right to dispute the lawfulness or fairness of termination under section 46. The claimant's allegations of coercion could not be wished away without evidence. Applying the clearest-of-cases threshold and cautioning against improper preliminary objections per Mukisa Biscuits, the court dismissed the application with costs to the claimant and directed the suit to full hearing on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant's suit fails to disclose a reasonable cause of action known in law against the respondent
  2. 2.Whether the suit is scandalous, frivolous, vexatious and an abuse of the court process
  3. 3.Whether the claimant's resignation was voluntary or vitiated by undue influence, and whether that raises triable issues

Key legal issues

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01

Whether a claimant who resigned and signed a clearance certificate can maintain a claim for unfair termination

Holding

Yes - the claim discloses a reasonable cause of action where the claimant alleges the resignation was procured by undue influence

Reasoning

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.

p. 2
02

The proper threshold for striking out a suit in limine

Holding

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

Reasoning

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.

p. 2
03

Whether the preliminary objection/application was properly raised

Holding

Improper raising of preliminary points increases costs and confuses issues, a practice that should be estopped

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The respondent's Notice of Motion dated 25th April 2014 seeking to have the suit dismissed in limine is dismissed
  2. 2.Costs of the application to the claimant
  3. 3.The suit to proceed to full hearing, with parties to be heard on merit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 2

Costs

Costs to the claimant.

Quotable passages

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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.
p. 3Final orders - dismissal of the striking-out application
the suit should be heard by call of evidence. Parties will be heard on merit.
p. 3Direction that the suit proceed to full hearing
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.
p. 2Reasonable cause of action on allegation of unfair termination despite resignation
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.
p. 2Caution against summary dismissal where triable issues exist

Issues in the judgment

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minor

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

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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, "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.