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ELRCDismissedCause No 1393 of 2010· [2018] KEELRC 424 (KLR)

Robert Indiazi v Tembo Sacco Limited [2018] KEELRC 424 (KLR)

Employment and Labour Relations Court
14 December 2018
MOMaureen Onyango
4,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an employee who chooses to resign instead of being fired cannot later claim unfair dismissal.

What this practically means

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Executive summary

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The claimant, formerly an Assistant Accountant of Tembo SACCO, sued for unfair, forced and constructive termination of employment following his resignation of 19th April 2010, seeking declarations of unfair termination and constructive dismissal, reinstatement, notice pay, accrued salary, leave and leave allowances, salary increment arrears, severance pay, bonus, honorarium and 12 months' maximum compensation totalling approximately Kshs.2.69 million. He alleged he was suspended in November 2009 over alleged unauthorized dividend payments, denied a fair hearing, and coerced into resigning under threat of arrest. The respondent denied constructive dismissal, contending that after investigations and a hearing before its Central Management Committee the claimant was found guilty of fraud, forgery and theft, and that he himself requested to resign rather than be summarily dismissed; it also contended his terminal dues were used to offset an outstanding loan. The court framed two issues: whether the claimant was coerced into resigning and his employment unfairly terminated, and whether he was entitled to the reliefs sought. Relying on the respondent's minutes of 19th April 2010, the court found the claimant requested to resign voluntarily and proved no constructive or unfair termination. Each head of relief failed on the evidence: accrued salary was paid, leave days unproved, and bonus, honorarium and allowances unsupported by evidence. The entire claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Constructive dismissal / coerced resignation

Holding

No constructive dismissal: the claimant himself requested to be allowed to resign when faced with summary dismissal, so the resignation was voluntary.

Reasoning

The court examined the respondent's minutes of 19th April 2010, which recorded that the claimant was found guilty of fraud, forgery and theft and that he requested to resign rather than be summarily dismissed. On that record, the coercion alleged by the claimant was not proved; the resignation flowed from the claimant's own request, defeating the constructive dismissal claim.

p. 5
02

Procedural fairness in the disciplinary hearing

Holding

The process complaint was rendered moot by the claimant's own choice to resign before the hearing concluded.

Reasoning

The claimant argued ambush, lack of notice of the disciplinary nature of the meeting and denial of the investigation report. The court held that because the claimant chose resignation instead of allowing the hearing to proceed to a conclusion, he cannot be heard to complain about the hearing's procedure. The entitlement to terminal dues was also assessed and found paid or unproved.

p. 5
03

Entitlement to reliefs

Holding

All heads of relief failed: notice pay not due on resignation without notice, accrued salary paid, leave and allowances unproved, bonus and honorarium unproved, and compensation unavailable absent unfair termination.

Reasoning

Each head was tested against the evidence. Accrued salary of Kshs.415,790.17 was documented as paid; leave was tabulated at 122 days against the claimant's unexplained 145; no evidence supported leave allowance, bonus or honorarium; and the 7% increment was admitted as paid. With no unfair termination, the maximum 12-month compensation was unavailable.

p. 6

Legal principles established

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  • Where an employee facing summary dismissal requests and is allowed to resign, the employment is terminated by resignation and no unfair termination arises.
  • An employee who prevents a disciplinary hearing from proceeding to its logical conclusion cannot later complain of the process at that hearing.

Court orders

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  1. 1.The entire claim is dismissed.
  2. 2.Each party shall bear its costs.

Authorities

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Legislation

  • Employment Act 2007section 40 (as cited in pleading re severance)
  • Employment Act 2007section 44
  • Employment Act 2007section 45
  • Employment Act 2007section 47(5)
  • Employment Act 2007section 41

Cases cited (14)

  • Pitus Omeri v Bob Morgan Services Limited
    [2013] eKLR
  • Bartholomew Wanyama v Moses Gitari & 2 Others
    Industrial Court Cause No. 973 of 2011
  • Henry Ochido v NGO Co-ordination Board
    [2015] eKLR
  • Nathan Ogada Atiagaga v Davis Engineering Ltd
    Cause No. 419 of 2014
  • Emmanuel Mutisya Solomon v Agility Logistics
    Cause No. 1448 of 2011
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Nicholus Muasva Kvula v Farmchem Ltd
    [2012] eKLR
  • Frederick Were v M.K. Jeffrey's Hauliers
    [2013] eKLR (Cause No. 1985 of 2012)
  • Joseph Sitati v Kenya Ports Authority
    [2010] eKLR
  • Universities Academic Staff Union v Masinde Muliro University
    Cause No. 379 of 2010 (unreported)
  • Moses Kaunda Moro v CMC Motors Group Ltd
    [2013] eKLR
  • Edwin Beiti Kipchumba v National Bank of Kenya Limited
    [2018] eKLR
  • Maria Kagai Ligaga v Coca Cola East & Central Africa Limited
    Cause Number 611 [N] of 2009
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    Civil Appeal Number 20 of 2010, [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007 reliefs claimed; jurisdiction challenged only as to bonuses)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Robert Indiazi v Tembo Sacco Limited [2018] KEELRC 424 (KLR)", Case Analysis (2018). Cause No 1393 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/424/eng@2018-12-14

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