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ELRCPartially AllowedCause No 1340 of 2010· [2018] KEELRC 1452 (KLR)

Bernard Cheruiyot Langat v Kenya Red Cross Society [2018] KEELRC 1452 (KLR)

Employment and Labour Relations Court of Kenya
20 July 2018
ANAbuodha J. N.
1,031 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 being forced to resign counts as unfair dismissal, awarding an employee six months' salary.

What this practically means

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Executive summary

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The claimant, employed by the respondent as Financial Planning and Budgeting Manager on annual renewable contracts at a final salary of Kshs 162,150/= per month, alleged that on 29th April 2010 he was summoned to the Secretary General's office where, in the presence of the Deputy Secretary and the Human Resource Manager, he was accused of leaking the organisation's secrets to a media house. He claimed he was threatened with summary dismissal and given only two options - resign or face summary dismissal - and, his plea for time to prepare a defence being refused, he tendered a resignation which was accepted the same day with waiver of the notice period. He sought salary for the remainder of the contract and damages for wrongful dismissal. The respondent maintained that he resigned voluntarily, was paid his terminal dues (collected by his wife on his written authority), and never rescinded the resignation; it also pleaded unjust enrichment for work not done. The respondent called no witnesses, relying on its memorandum of response and submissions. The court held that pleadings are untested claims and not evidence, and that the respondent's failure to call witnesses to controvert the coercion allegations left the impression that it was more probable than not that the resignation was involuntary. Involuntary resignation was held to be an unfair termination under section 45 of the Employment Act. Awarding compensation limited to six months' salary because the contract could have been lawfully terminated by either party and other dues had been paid, the court granted the claimant Kshs 972,900/=, subject to taxes and statutory deductions, plus costs of the suit.

Key legal issues

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01

Whether the claimant's resignation was voluntary

Holding

The court found the resignation was involuntary because the respondent failed to call evidence to controvert the claimant's testimony of coercion

Reasoning

The claimant testified that he was summoned to the Secretary General's office, accused of leaking secrets to the media, threatened with summary dismissal, and given only two options: resign or face summary dismissal. The respondent relied only on pleadings and submissions without calling witnesses. The court held that pleadings are not evidence, and the failure to testify left the impression that it was more probable than not that the resignation was involuntary.

p. 2
02

Legal effect of an involuntary resignation

Holding

An involuntary resignation is an unfair termination within the meaning of section 45 of the Employment Act

Reasoning

Having found the resignation was coerced by threats of summary dismissal, the court characterised it as an unfair termination rather than a voluntary exit, thereby attracting remedies under section 45 of the Employment Act. Compensation was limited to six months' salary since the contract could have been lawfully terminated by either party and other dues had already been paid.

p. 2

Legal principles established

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  • Averments in pleadings are not evidence in themselves; a party who makes serious allegations in pleadings must call witnesses to prove them.
  • An involuntary or coerced resignation constitutes unfair termination of employment under section 45 of the Employment Act.

Court orders

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  1. 1.Award of Kshs 972,900/= being six months' salary as compensation for unfair termination of service
  2. 2.Judgment sum subject to taxes and statutory deductions
  3. 3.Claimant to have costs of the suit

Authorities

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Legislation

  • Employment Actsection 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination); Article 162(2) jurisdiction implied by the court's establishment

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, "Bernard Cheruiyot Langat v Kenya Red Cross Society [2018] KEELRC 1452 (KLR)", Case Analysis (2018). Cause No 1340 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1452/eng@2018-07-20

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