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ELRCPartially AllowedCause No. 2006 of 2013 (formerly Nairobi CMCC No. 1726 of 2007)· [2018] KEELRC 2014 (KLR)

Peter Mburu Mwenda v Faith Homes of Kenya & 4 others [2018] KEELRC 2014 (KLR)

Employment and Labour Relations Court (Industrial Court)
4 May 2018
2,635 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a pastor resigned voluntarily, not constructively dismissed, but still won unpaid salary while owing notice pay for resigning without notice.

What this practically means

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Executive summary

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The claimant, formerly an Accounts Clerk and later Pastor of Nairobi Faith Church operating under the 1st respondent, claimed he was forced to resign on 7th January 2007 due to unfavourable working conditions. He sought salary for December 2006 and seven days of January 2007, seven years' leave at Kshs.266,000, costs and interest. The 1st and 5th respondents (the 2nd to 4th being said to be non-existent) denied the claim and counterclaimed for three months' pay in lieu of notice, tutorial fees of Kshs.251,955, and Kshs.183,000 allegedly taken for an unauthorised trip to Thailand. The court framed three issues: constructive dismissal, the claimant's remedies, and the counterclaim. Applying the ingredients of constructive dismissal from the Maria Kagai Ligaga case relied on by the claimant, the court found no repudiatory breach and no evidence of mistreatment; the resignation followed a fall-out over failure to account for church funds and equipment, and the frustrations were not connected to the respondents who appeared. The claimant was awarded his salary for December 2006 and 1st to 7th January 2007 (Kshs.46,861 per the orders, though Kshs.46,867 in the body of the judgment). The leave claim was dismissed because the claimant was in training for his last three years and was on a one-month trip shortly before resigning. On the counterclaim, only the notice pay of Kshs.114,000 was awarded; the fees and trip monies were held to be donations and fundraised amounts, not loans. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the claimant was constructively dismissed

Holding

The claimant resigned of his own free will; constructive dismissal was not proved and the alleged frustrations were not connected to the 1st and 5th respondents.

Reasoning

The court applied the ingredients of constructive dismissal from the Maria Kagai Ligaga case relied on by the claimant. The only arguable breach was the withholding of December 2006 salary, which was explained as a response to the claimant's failure to account for tithes, offerings and equipment. The resignation letter was addressed to the Board of Elders and Deacons, not to the respondents sued, and no evidence of mistreatment justified a finding of constructive dismissal.

p. 4
02

Claimant's entitlement to salary for December 2006 and January 2007 (1st to 7th)

Holding

Awarded Kshs.46,861 (stated as Kshs.46,867 in the body) as the claimant was in employment for the period.

Reasoning

Despite finding no constructive dismissal, the court held that the claimant worked during the period and was entitled to his salary of Kshs.38,000 per month for December 2006 and seven days of January 2007.

p. 4
03

Claim for 7 years' annual leave

Holding

Dismissed; the claimant was in training from January 2004 to January 2007 and was on a one-month trip in October/November 2006.

Reasoning

The court found that a claimant who was a Pastor in charge of the Church, was in training for the last 3 years of service (during which RW1 said he had agreed to forfeit annual leave), and travelled abroad for a month shortly before resigning, was not entitled to the leave claim.

p. 4
04

Counterclaim for 3 months' pay in lieu of notice

Holding

Awarded Kshs.114,000; the claimant was contractually obliged to give 3 months' notice or pay in lieu and did not.

Reasoning

The claimant's contract required 3 months' notice or payment in lieu. Having resigned without notice, the 1st respondent was entitled to the sum of Kshs.114,000 equivalent to 3 months' salary.

p. 4
05

Counterclaim for tutorial fees and Thailand trip monies

Holding

Dismissed; the fees and trip were funded by donations and church fundraisers, not loans.

Reasoning

The 5th respondent's letter of 18th April 2006 expressed inability to assist with fees, and documents showed church fundraisings for fees and for the trip, in which RW2 participated. The claimant produced evidentiary proof of the collections, so no refund was due.

p. 5

Legal principles established

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  • The ingredients of constructive dismissal are: an employer breach of contract, the breach being fundamental/repudiatory, resignation in response to the breach, and no delay in resigning.
  • A resignation following a fall-out over failure to account for funds is a voluntary resignation, not constructive dismissal, absent evidence of mistreatment or frustration.

Court orders

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  1. 1.Declaration that the claimant's resignation was not a constructive dismissal
  2. 2.Judgment in favour of the claimant against the respondent in the sum of Kshs.46,861 on account of salary for December 2006 and 1st to 7th January 2007
  3. 3.Judgment in favour of the 1st respondent in the sum of Kshs.114,000 on account of pay in lieu of notice
  4. 4.Each party shall bear its costs

Authorities

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Cases cited (1)

  • Maria Kagai Ligaga -vs- Coca Cola East and Central Africa Limited
Jurisdiction invoked
Transferred from Milimani Chief Magistrate's Court to the Industrial Court pursuant to an order dated 4th June 2013 in Industrial Court Misc. Application No. 32 of 2012

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, "Peter Mburu Mwenda v Faith Homes of Kenya & 4 others [2018] KEELRC 2014 (KLR)", Case Analysis (2018). Cause No. 2006 of 2013 (formerly Nairobi CMCC No. 1726 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2014/eng@2018-05-04

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