Susan Waitherero Rukungu v Boniface Kamau & another [2018] KEELRC 747 (KLR)
The bottom line
#A Kenyan court ruled an employee who resigns must prove working conditions were intolerable to win constructive dismissal, and she was held to her pleadings.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed or resigned voluntarily
The Claimant was not constructively dismissed; she resigned on her own volition.
The court held that in constructive dismissal the burden shifts to the employee to prove the working environment was intolerable. The Claimant alleged denial of leave and overwork but produced no rejected leave applications or employment records of hours worked, and did not request the Respondent to produce documents. Unlike Alice Mbithe Mwanzia v Xpress IT Courier, there was no tangible evidence of unilateral variation of contractual terms. Further, constructive dismissal was not pleaded.
Whether the Claimant is entitled to the terminal dues claimed
Partially - the Claimant is entitled to unpaid NSSF and NHIF remittances and house allowance, less one month's notice for resigning without notice; service pay, overtime, leave allowance and public holiday claims fail.
Having found voluntary resignation, the court limited remedies to terminal dues. Unpaid statutory deductions (NSSF at Kshs. 200 and NHIF at Kshs. 400 monthly) were computed as payable. House allowance at 15% of salary was awarded. Service pay was barred by NSSF membership under Section 35(6) of the Employment Act, and prayers for overtime and public holidays failed for want of evidence.
Whether a claim raised for the first time in submissions (constructive dismissal) is available to a claimant
No - parties are bound by their pleadings and cannot expand their case through submissions.
The Respondent objected that constructive dismissal was raised in submissions as an afterthought. The court agreed, holding that since the Memorandum of Claim did not plead constructive dismissal, the Claimant could not make extensive submissions on it. This is an application of the principle that pleadings define the scope of the case.
Legal principles established
#- In constructive dismissal claims the burden of proof lies on the employee to show the working conditions were intolerable
- A party is bound by their pleadings and cannot introduce a new cause of action through submissions
- An employee who resigns voluntarily is entitled only to terminal dues, and resignation without notice allows deduction of one month's salary in lieu of notice
Court orders
#- 1.Claimant awarded Kshs. 3,600.00 in unpaid NSSF and Kshs. 7,200.00 in unpaid NHIF remittances
- 2.Claimant awarded house allowance of Kshs. 75,600.00 (15% of salary computed over 4.2 months)
- 3.Total award of Kshs. 74,400.00 after deducting one month's salary in lieu of notice (Kshs. 12,000) for resignation without notice
- 4.Respondents to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Cause No. 1577 of 2014, Memorandum of Claim for terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kilima v Centre for Rights Education and Awareness (Employment and Labour Relations Cause E842 of 2022) [2024] KEELRC 614 (KLR)[2024] KEELRC 614 (KLR)14 Mar 2024applied
Cite this brief
#Cite this brief
Caselaw, "Susan Waitherero Rukungu v Boniface Kamau & another [2018] KEELRC 747 (KLR)", Case Analysis (2018). Cause No. 1577 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/747/eng@2018-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.