Jack Opondoh Kwemba v Sunday Publishers Limited/The Sunday Express Newspaper [2019] KEELRC 452 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant voluntarily resigned or was constructively dismissed
The claimant resigned voluntarily; constructive dismissal was not proved
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.
Whether the claimant was entitled to the pleaded salary of Kshs.50,000 plus Kshs.15,000 house allowance
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
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.
Leave, service pay and reimbursable expenses
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
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
#- 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
#- 1.Judgment entered for the claimant against the respondent for Kshs.452,273.65
- 2.Payment of Kshs.268,812.50 being salary and house allowance for February to December 2009 (Kshs.24,437.50 x 11)
- 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.Payment of Kshs.62,500 being service pay at 15 days' pay per year of service
- 5.Payment of Kshs.20,000 being the balance of transport and subsistence for the Kampala duty trip
- 6.Costs of the suit to the claimant
- 7.Interest at court rates from the date of filing the suit
- 8.The award is subject to statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; constitutional reference to Article 41 raised in the pleadings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.