Kipchumba v National Bank of Kenya Ltd (Cause 824 of 2016) [2018] KEELRC 2393 (KLR)
The bottom line
#Kenya's Employment Court ruled a pressured employee could withdraw his resignation a day later and remains employed with full back pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Constructive dismissal not established; the Claimant did not resign because working conditions were intolerable, and his immediate rescission negated repudiatory breach.
The Court adopted the test in Maria Kagai Ligaga v Coca Cola that constructive dismissal requires repudiatory breach making continued employment intolerable. The Claimant attributed the resignation to coercion by Directors rather than intolerable conditions, and by rescinding a day later showed he could continue working, destroying the repudiatory-breach basis of the claim.
Whether the resignation was coerced and validly withdrawn
The resignation was coerced through wrongful pressure by Acting Executive Director Koech; the withdrawal a day later was valid, and the Claimant remains in employment.
The Court found persistent calls from Koech pressuring the Claimant to resign, false promises of a new job, suppression of the Deloitte Report and CBK engagement, and the Board's protectiveness, constituted special circumstances. The rescission came within a day, within the reasonable-time principle, and the Respondent's 'investigation' of coercion was not objective as it involved the alleged coercers.
Whether acceptance of resignation ended the employment contract
No; where resignation is made on the spur of the moment under special circumstances, acceptance does not bar revocation, and the employer should allow a cooling-off period and genuinely investigate.
Drawing on comparative authorities (McManus, Kwik-Fit v Lineham, Templeton), the Court distinguished William Kariuki v Kenya Civil Aviation, which did not deal with heat-of-the-moment resignations. The Respondent accepted the resignation the same day as rescission, with no cooling-off period and a compromised investigation, so locus poenitentiae was not lost.
Remedies
Compensation for unfair termination, general damages, leave pay and service pay refused; the Claimant granted declaration of continued employment and arrears of full salary.
The contract having been preserved by the interim ruling of 6th February 2017, the Claimant lost nothing; compensation for unfair termination was unavailable as there was no termination, and the 8.9 million general damages claim was disproportionate. The Court directed the relationship be rebuilt rather than wrecked by unreasonable demands.
Legal principles established
#- A resignation made under wrongful pressure amounts to coercion even without physical force or threat of confinement.
- Resignation to amount to constructive dismissal must be unequivocal; an employee who immediately rescinds cannot sustain such a claim.
- An employee who resigns in the heat of the moment under special circumstances may validly withdraw the resignation within a reasonable time, even where the employer has accepted it.
Court orders
#- 1.It is declared the Claimant is still validly an Employee of the Respondent Bank.
- 2.The letter of resignation issued by the Claimant to the Respondent dated 5th October 2016 is declared to have been validly withdrawn by the Claimant, through his letter to the Respondent dated 6th October 2016.
- 3.The Respondent shall pay to the Claimant arrears of salary in full, dating back to the time when the Claimant last received a full salary.
- 4.Costs of the Claim to the Claimant.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Labour Relations Act (employment dispute founded on Statement of Claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipchumba v National Bank of Kenya Ltd (Cause 824 of 2016) [2018] KEELRC 2393 (KLR)", Case Analysis (2018). Cause Number 762 of 2016 (Employment and Labour Relations Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2393/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.