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ELRCDismissedCause No. 106 of 2015· [2016] KEELRC 1113 (KLR)

Gilbert Kipkorir v Super Expo Limited [2016] KEELRC 1113 (KLR)

Employment & Labour Relations Court of Kenya
3 June 2016
DMD. K. Njagi Marete
2,578 words in judgment
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The bottom line

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A Kenyan court dismissed a driver's KSh 10.6 million claim after finding he had resigned voluntarily, not been unfairly dismissed by his employer.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1st October 1999 and rising from driver to Manager, sued claiming that he was wrongfully, unprocedurally and unlawfully summarily dismissed on 9th September 2014 after a lorry (KBQ 566B) caught fire at Turbo along the Eldoret-Webuye road. He asserted he was not the driver or conductor and was not with the lorry, and sought a declaration of unfair termination, Kshs. 10,607,989.00 in terminal dues (notice pay, severance, leave, overtime, pending salary, house allowance, public holidays and 12 months' compensation), a certificate of service, costs and interest. He relied on Sections 35, 36, 41, 43, 45 and 51 of the Employment Act, 2007, Section 15(c) of the Labour Institutions Act and various authorities on substantive justification and procedural fairness. The respondent denied any termination, contending the claimant voluntarily resigned by letter dated 22nd September 2014, which was acknowledged, that this followed a prior 2006 resignation, and that he had incited other employees to resign en masse; it also denied overtime and house allowance claims, asserting an all-inclusive salary. The court framed three issues: whether termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Relying on the respondent's documentary evidence and the distinction between resignation and dismissal drawn in Owaga v Transcom, the court found on a preponderance of evidence that the claimant resigned voluntarily and did not demonstrate termination. The entire claim was dismissed with each party bearing its own costs. Judgment was delivered on 3rd June 2016 by D.K.N. Marete, Judge.

Key legal issues

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01

Whether the claimant's employment was terminated by the respondent as alleged, or whether he voluntarily resigned

Holding

The court found the claimant resigned voluntarily and there was no unlawful termination by the respondent

Reasoning

The respondent produced a resignation letter dated 22nd September 2014 acknowledged by the respondent, plus a prior 2006 resignation, and witness statements suggesting the claimant incited colleagues to resign en masse. The claimant's allegation of summary dismissal over the burning lorry was not substantiated. On the balance of probability, the respondent's account prevailed and the court held there was lawful termination, answering the first issue against the claimant.

p. 7
02

Whether the claimant is entitled to the relief sought (notice pay, severance, leave, overtime, house allowance, pending salary, public holidays, 12 months' compensation, certificate of service)

Holding

The claimant was disentitled to the relief because his employment was lawfully terminated upon his own resignation

Reasoning

Since the court found no unfair or wrongful termination by the respondent, the contractual and statutory claims premised on dismissal under Sections 35, 36, 41, 43 and 45 of the Employment Act, 2007 fell away. The court therefore answered the second issue against the claimant and dismissed the entire claim, declining the monetary reliefs, the certificate of service and the declaratory relief.

p. 7
03

Who should pay costs of the suit

Holding

Each party to bear its own costs

Reasoning

Despite succeeding, the respondent did not obtain an order for costs against the claimant; the court exercised its discretion to order that each party bears its own costs of the claim, clearing the final issue for determination.

p. 7

Legal principles established

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  • Resignation is a voluntary act by the employee terminating his employment, whereas dismissal is termination by the employer without notice
  • Where a claimant fails to rebut the employer's evidence of voluntary resignation on a balance of probability, the claim fails

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.Each party bears its own costs of the claim

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 44(4)
  • Employment ActSections 35(1)(b), (c) and 36
  • Employment ActSection 28(1)
  • Employment ActSections 45, 45(2), 45(4)(b) and 4(b)
  • Employment ActSection 43
  • Employment ActSections 27(1) and 27(2)
  • Employment ActSection 51
  • Labour Institutions ActSection 15(c)

Cases cited (6)

  • Walter Ogal Anuro Vs Teachers Service Commission
    [2013] eKLR
  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    [2013] EKLR
  • Nicholus Muasya Kyula v Farmchem Limited Industrial Cause Number 1992 of 2011
    [2012] LLR 235 (ICK)
  • Kabengi Mugo v Syngenta East Africa Limited Industrial Cause Number 1476 of 2011
  • Donald Odeke v Fidelity Security Limited Industrial Cause Number 1998 of 2011
    [2011] LLR 277
  • Owaga versus Transcom (u) Ltd HCC No.44 of 1982
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Cause filed under the Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gilbert Kipkorir v Super Expo Limited [2016] KEELRC 1113 (KLR)", Case Analysis (2016). Cause No. 106 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1113/eng@2016-06-03

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