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ELRCDismissedCause No. 6 of 2015· [2016] KEELRC 147 (KLR)

Kefah Rabah v Jaramogi Oginga Odinga University of Science and Technology [2016] KEELRC 147 (KLR)

Employment & Labour Relations Court
1 December 2016
2,830 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan professor who quit his university job for a better one could not claim Shs.7.9 million because he proved neither forced exit nor unpaid dues.

What this practically means

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Executive summary

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The Claimant, a professor of Physics employed by the Respondent university from 1st September 2010 and later Dean of the School of Informatics and Innovative Learning Systems, resigned by notice dated 14th August 2013 effective 1st October 2013 to take up employment as Deputy Vice Chancellor at Kabarak University, after the Respondent declined to grant him leave of absence. He filed a memorandum of claim seeking salary for September 2013, payment for extra courses taught (Shs.1,617,000), accrued leave days, a final CBA payment, severance pay and damages under section 49 of the Employment Act, totalling about Shs.7.9 million, on the basis that he had been constructively dismissed. The Respondent denied the claim, asserting the Claimant voluntarily resigned and was paid all his dues, including the withheld September salary released after clearance. The court framed two issues: whether the Claimant was constructively dismissed or voluntarily resigned, and whether he was entitled to the prayers. Applying the test for constructive dismissal, the court held the Claimant resigned voluntarily for a better job; the refusal of leave of absence was not a breach of contract, the resignation letter referred to no frustration and even thanked the Respondent. On the monetary claims, the Claimant admitted having no proof that he taught the extra courses claimed and failed to prove any unpaid CBA arrears. The September 2013 salary was shown to have been paid. Severance and unfair termination damages were unavailable as there was no redundancy or unfair termination. The entire claim was dismissed with no orders for costs.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

The Claimant voluntarily resigned to take up employment at Kabarak University; constructive dismissal was not established

Reasoning

The court reviewed the Kenyan and comparative jurisprudence on constructive dismissal. The Claimant's own testimony was that he resigned for a better job opportunity. The refusal of leave of absence was not a breach of contract. His resignation letter did not refer to any frustration and in fact thanked the Respondent. None of the grounds cited were reasons for his leaving, and no evidence of intolerable working conditions was produced. The allegation of constructive dismissal failed.

p. 5
02

Whether the Claimant proved the monetary claims (extra courses, CBA payment, salary, leave, severance)

Holding

None of the monetary claims were proved; the entire claim was dismissed

Reasoning

On extra courses, the Claimant admitted having no proof he taught the classes claimed, produced no attendance registers or memos seeking computation, and the courses were not approved by the Deputy Vice Chancellor. On the CBA claim he could not explain his computation. The September 2013 salary was shown to have been paid after deduction of liabilities. Severance and section 49 damages were inapplicable since there was no redundancy or unfair termination. The claim failed in its entirety.

p. 6

Legal principles established

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  • A resignation will be deemed constructive dismissal only where the employee is forced to leave against his will because of the employer's conduct breaching the implied term of trust and confidence; refusal to grant leave of absence and a resignation letter without any complaint of frustration do not establish constructive dismissal
  • He who alleges must prove; the burden lies on the claimant to establish the facts underpinning each head of claim

Court orders

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  1. 1.The entire claim filed by the Claimant is dismissed with no orders for costs

Authorities

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Legislation

  • Employment Actsection 49

Cases cited (6)

  • Kenneth Kimani Mburu & Another v Kibe Muigai Holdings Limited
    [2014] eKLR
  • Max Masoud Roshankar & another v Sky Aero Limited
    [2015] eKLR
  • Tailors & Textiles Workers Union v African Cotton Industries Limited
    [2014] eKLR
  • Western Excavating (ECC) Ltd v Sharp
    (1978) IRLR 27
  • Rehana Mohammed v MM Mobile Limited
    [2011] eKLR
  • Pretoria Society For the Care of the Retarded v Loots
    [1987] & BLLR 721 (LAC)
Jurisdiction invoked
Employment and labour relations jurisdiction over claims by an employee against his employer (Employment and Labour Relations Court Act)

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, "Kefah Rabah v Jaramogi Oginga Odinga University of Science and Technology [2016] KEELRC 147 (KLR)", Case Analysis (2016). Cause No. 6 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/147/eng@2016-12-01

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