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ELRCPartially Allowed· [2019] KEELRC 452 (KLR)

Jack Opondoh Kwemba v Sunday Publishers Limited/The Sunday Express Newspaper [2019] KEELRC 452 (KLR)

Employment and Labour Relations Court of Kenya
1 November 2019
2,866 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an editor who quit for better pay wasn't constructively dismissed, but still awarded him Kshs.452,273 in unpaid salary, leave, and service pay.

What this practically means

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Executive summary

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The claimant, formerly Sports Editor of the respondent newspaper from January 2009 until his resignation on 31 March 2014, sued for a declaration that his resignation amounted to wrongful and unlawful constructive dismissal, plus terminal dues and compensation totalling Kshs.6,427,500. He alleged unpaid salary for 2009, an unfulfilled verbal promise of a salary of Kshs.50,000 plus house allowance of Kshs.15,000, unpaid overtime, unremunerated leave, unpaid service pay, an un-reimbursed Kshs.20,000 Kampala expense, and non-remittance of NSSF and NHIF deductions. The respondent denied the verbal agreements, asserting the claimant was employed at Kshs.21,250 per month and resigned voluntarily. The court framed three issues: whether the resignation was voluntary or constructive dismissal; if dismissal, whether it was unfair and wrongful; and whether the reliefs should issue. Holding that the resignation letter stated no reason and alleged no fundamental breach, and that earlier pay grievances and 2011 disciplinary action had no causal link to the resignation, the court found the resignation voluntary and declined the declarations sought, including the Article 41 constitutional declaration for want of competent pleading per the Anarita Karimi Njeru standard. Partial relief was granted: Kshs.268,812.50 for unpaid admitted salary plus 15% house allowance for February–December 2009, Kshs.100,961.15 for 105 accrued leave days at the statutory minimum, Kshs.62,500 service pay, and Kshs.20,000 Kampala reimbursement - totalling Kshs.452,273.65, with costs, interest at court rates from filing, subject to statutory deductions.

Key legal issues

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01

Whether the claimant voluntarily resigned or was constructively dismissed

Holding

The claimant resigned voluntarily; constructive dismissal was not proved

Reasoning

The resignation letter dated 3.3.2014 cited no reason and accused the employer of no fundamental breach. Earlier grievances about pay were common to all staff and disciplinary actions in 2011 were over two years before the resignation, severing any causal link. The court held that an employee resigning for greener pastures cannot easily succeed in constructive dismissal.

p. 3
02

Whether the claimant was entitled to the pleaded salary of Kshs.50,000 plus Kshs.15,000 house allowance

Holding

Only the admitted salary of Kshs.21,250 plus 15% house allowance was awarded for February to December 2009; the balance of the claim failed for lack of proof of the alleged verbal agreement

Reasoning

There was no written contract. The respondent admitted employment from 26.1.2009 at Kshs.21,250 with no house allowance, and did not prove payment for February to December 2009. The claimant's later letter accepting Kshs.25,000 undermined the claimed higher salary.

p. 4
03

Leave, service pay and reimbursable expenses

Holding

Accrued leave at the statutory minimum of 21 days per year was awarded; service pay of 15 days per year was awarded; Kshs.20,000 Kampala expenses were awarded

Reasoning

The respondent's director admitted the claimant never took annual leave. The NSSF letter showed the respondent was not a registered employer and never remitted contributions, justifying service pay. The Kampala expenditure was undisputed as official duty.

Legal principles established

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  • An employee claiming constructive dismissal must prove that the employer fundamentally breached the contract or created an intolerable working environment forcing the resignation
  • A resignation prompted by general dissatisfaction with low pay, where the employee resigns to seek better remuneration elsewhere, does not ordinarily found a claim for constructive dismissal
  • Constitutional pleadings must set out with reasonable precision the complaint, the provision infringed and the manner of infringement (Anarita Karimi Njeru standard)

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for Kshs.452,273.65
  2. 2.Payment of Kshs.268,812.50 being salary and house allowance for February to December 2009 (Kshs.24,437.50 x 11)
  3. 3.Payment of Kshs.100,961.15 being cash in lieu of accrued leave (21 days per year, 105 leave days, computed at Kshs.25,000 x 105/26)
  4. 4.Payment of Kshs.62,500 being service pay at 15 days' pay per year of service
  5. 5.Payment of Kshs.20,000 being the balance of transport and subsistence for the Kampala duty trip
  6. 6.Costs of the suit to the claimant
  7. 7.Interest at court rates from the date of filing the suit
  8. 8.The award is subject to statutory deductions

Authorities

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Legislation

  • Employment Actsection 28
  • Constitution of KenyaArticle 41

Cases cited (1)

  • Anarita Karimi Njeru –v- Republic
    [1979] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; constitutional reference to Article 41 raised in the pleadings

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, "Jack Opondoh Kwemba v Sunday Publishers Limited/The Sunday Express Newspaper [2019] KEELRC 452 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/452/eng@2019-11-01

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