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ELRCPartially AllowedCause Number 1431 of 2014· [2018] KEELRC 2237 (KLR)

Climate Pal Limited v John Masai Kapolon [2018] KEELRC 2237 (KLR)

Employment and Labour Relations Court of Kenya
16 February 2018
ANAbuodha J. N.
733 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer won three months' salary because its employee resigned without notice, but lost its other claims by failing to prove them.

What this practically means

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Executive summary

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The claimant, Climate Pal Limited, sued its former Chief Operations Officer, John Masai Kapolon, contending that he resigned with immediate effect by email on 2nd June 2014 without giving the contractual three months' notice or payment in lieu, retained a company laptop and smartphones containing the client database, and failed to account for various sums, including over USD 10,000, Kshs 88,950 and Kshs 19,305. The claimant sought three months' salary in lieu of notice and reimbursement of the unaccounted monies. The respondent neither entered appearance nor filed a response, so the cause proceeded undefended, with Mr Gitau, a director of the claimant, testifying. The court held that the respondent's contract required either party to terminate on three months' notice or payment in lieu, and since no such notice was given, judgment was entered for the claimant on that head for Kshs 705,000. However, the court declined the remaining heads: no inventory was tabled proving the respondent was ever allocated the alleged laptops and smartphones, and the evidence on the unaccounted monies was superficial and lacking in detail. The court emphasised that an undefended claim does not lessen the claimant's burden of proving its case to the civil standard. Judgment was accordingly entered for three months' salary in lieu of notice with costs of the suit. The claim partially succeeded.

Key legal issues

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01

Breach of contractual notice requirement on resignation

Holding

The respondent, who resigned with immediate effect without giving three months' notice or payment in lieu as required by the contract, breached the contract; judgment for three months' salary in lieu of notice of Kshs 705,000 entered for the claimant

Reasoning

The contract of employment expressly required either party to terminate by three months' notice or payment in lieu. The respondent tendered an email resignation with immediate effect. The averment was uncontested in the undefended cause, so the court found the claimant entitled to judgment on this head.

p. 1
02

Standard of proof on unproven heads in an undefended claim

Holding

The claims for unaccounted monies and retention of company property failed for want of proof; an undefended claim does not relieve the claimant of the civil burden of proof

Reasoning

Although most averments were uncontested, the court required evidence of an inventory showing the respondent was allocated the laptop and smartphones, and evidence tracing monies received. Mr Gitau's evidence was superficial and lacking in detail, so judgment could not safely be entered on those heads.

p. 1

Legal principles established

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  • In a claim for unfair termination or wrongful dismissal, the onus is on the claimant to show that the termination or dismissal was contrary to the contract of employment and fair procedure
  • An undefended claim does not lessen the claimant's burden of proof to the civil standard

Court orders

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  1. 1.Judgment entered against the respondent for three months' salary in lieu of notice at Kshs 705,000
  2. 2.Costs of the suit awarded to the claimant

Authorities

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Legislation

  • Employment Actnot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (employment cause filed as memorandum of claim)

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, "Climate Pal Limited v John Masai Kapolon [2018] KEELRC 2237 (KLR)", Case Analysis (2018). Cause Number 1431 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2237/eng@2018-02-16

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