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ELRCDismissedCause No. 1906 of 2014· [2018] KEELRC 406 (KLR)

Janet Kagonya Orocho v Riley Services Limited [2018] KEELRC 406 (KLR)

Industrial Court of Kenya
3 December 2018
1,588 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 employment court ruled that a clear written resignation ends the job immediately and cannot be taken back, so the employee lost all her claims.

What this practically means

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Executive summary

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The claimant, employed by the respondent in March 2008 as a gaurdette on permanent and pensionable terms, alleged that the respondent unilaterally sought to convert her employment to fixed-term annual contracts and thereafter terminated her employment by a letter dated 8th April 2014 purporting that her contract had expired. She sought notice pay, payment in lieu of annual leave, unpaid house allowance, severance pay, damages equivalent to twelve months' wages and costs. The respondent denied the claim, asserting the claimant was always on annual fixed-term contracts, that she declined to sign a renewal and instead issued notices of resignation (letters dated 1st August 2014 and 25th March 2014) to pursue college education, was issued a letter of cessation of employment on non-renewal, cleared on 7th April 2014 and paid terminal dues of Kshs. 21,765, signing a discharge form in satisfaction. The respondent further argued the house allowance claim was time-barred as salary was consolidated and that leave pay for 18 months had been paid. Upon determination by written submissions, the court framed three issues. Relying on the authority of Edwin Beiti Kipchumba v National Bank of Kenya, the court held that a notice of resignation is a unilateral act of termination that does not require acceptance to become effective, and that a clear resignation ends the contract inter partes and is not reclaimable as of right. The court found lawful termination, held the claimant disentitled to all relief, dismissed the claim, and ordered each party to bear their own costs. Judgment was dated and signed on 29th November 2018 by D. K. Njagi Marete, J, and delivered on 3rd December 2018 by Maureen Onyango, Principal Judge.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was lawful, being founded on the claimant's own notices of resignation which ended the contract of employment inter partes and could not be reclaimed as of right.

Reasoning

The respondent submitted that the claimant resigned by letters dated 1st August 2014 (three months' notice) and 25th March 2014 (one month's notice) to pursue college education. The court adopted the reasoning in Edwin Beiti Kipchumba v National Bank of Kenya, holding that a notice of resignation is a unilateral act of termination by the employee which does not require acceptance to become effective, and that a clear resignation deprives the employee of the right to withdraw. The court agreed with the respondent and found lawful termination.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

The claimant is not entitled to any of the relief sought because her claim of unlawful termination failed.

Reasoning

All heads of relief (notice pay, leave pay, house allowance, severance pay and damages) were premised on a finding of unfair or unlawful termination. Having found that the employment ended by the claimant's own resignation, which the respondent honoured, the court held the claimant disentitled to the relief sought and dismissed the claim.

p. 3
03

Who bears the costs of the claim

Holding

Each party is to bear their own costs of the claim.

Reasoning

Although the claim was dismissed, the court declined to award costs to the successful respondent, instead ordering each party to bear their own costs, presumably reflecting the circumstances of the case and the discretion of the court on costs.

p. 3

Legal principles established

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  • A clear and unequivocal notice of resignation effectively terminates the contract of employment inter partes and cannot be reclaimed as of right.
  • An employee who has clearly resigned is bound by that decision, and the resignation need not be accepted by the employer to become effective.

Court orders

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

Authorities

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Legislation

  • Employment Act 2007Section 28(1)(a)
  • Employment Act 2007Section 28(4)
  • Employment Act 2007Section 40(1)(f)
  • Employment Act 2007Section 40(1)(g)
  • General Wages Order

Cases cited (1)

  • Edwin Beiti Kipchumba v National Bank of Kenya (2018) Eklr
    (2018) eKLR
Jurisdiction invoked
Reference to the Industrial Court of Kenya under the memorandum of claim dated 13th October 2014; the judgment does not cite a specific constitutional or statutory jurisdictional provision.

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, "Janet Kagonya Orocho v Riley Services Limited [2018] KEELRC 406 (KLR)", Case Analysis (2018). Cause No. 1906 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/406/eng@2018-12-03

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