Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissed· [2019] KEELRC 665 (KLR)

George John Cardovilis v Simba Corporation Limited [2019] KEELRC 665 (KLR)

Employment and Labour Relations Court
16 October 2019
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a former employee's claim for unpaid salary because his emails showed he had agreed to changed resignation terms.

What this practically means

#

Executive summary

#
The Claimant, employed as a regional sales consultant in Nanyuki on a one-year contract from 1st September 2016 at a monthly salary of Kshs. 350,000/-, resigned by notice dated 24th January 2017 effective 1st February 2017, later indicating he should be released at end April 2017. He sued for Kshs. 363,540/- being April 2017 salary of Kshs. 350,000/- plus expenses of Kshs. 13,540/-, a certificate of service and interest. The Respondent admitted the employment and salary but contended that the parties mutually varied the resignation terms: the Claimant would exit at end of February 2017, not work in March 2017 but be paid for February and March, and would neither work nor be paid for April 2017. It relied on the letter dated 21st February 2017 and email correspondence confirming this arrangement. Both the Claimant and Isabel Ndunge Ngugi testified for the Respondent. The court found the correspondence, including emails with HR Manager John Ikinya, evidenced the Claimant's acceptance of the variation; he handed over the company vehicle on 10th March 2017, was paid March 2017 salary and refunds of Kshs. 58,906/-, and the certificate of service was dated 31st March 2017. No evidence showed he worked beyond March 2017, and the expenses claim failed for want of receipts. The court dismissed the suit as unproved on a balance of probabilities and ordered each party to bear its own costs.

Key legal issues

#
01

Whether there was a mutual variation of the resignation terms

Holding

Yes - the emails and letter of 21st February 2017 showed the parties agreed the Claimant would exit at end of February 2017 and be paid for February and March 2017

Reasoning

The court found from the correspondence, including emails with the HR Manager and the letter dated 21st February 2017, that the Claimant's last working day was varied to February 2017. The Claimant handed over the vehicle on 10th March 2017, received March salary and refunds, and the certificate of service was dated 31st March 2017, all consistent with the varied terms.

p. 2
02

Whether the Claimant worked in April 2017 so as to earn April salary

Holding

No - no evidence was presented that the Claimant worked beyond March 2017

Reasoning

The Claimant tendered no evidence of work performed in April 2017. The certificate of service dated 31st March 2017 aligned with the parties' agreed timelines. Payment for March 2017 and refunds of Kshs. 58,906/- were made upon handover of the company vehicle, laptop and printer. The claim for April salary was therefore unproved on a balance of probabilities.

p. 2
03

Whether the claim for expenses of Kshs. 13,540/- was proved

Holding

No - the Claimant did not avail receipts or proof of the sums claimed

Reasoning

The Respondent had queried the claim and required the Claimant to avail receipts. Although the Claimant pleaded that particulars were within the Respondent's knowledge, he adduced no documentary proof of the expenses. That portion of the claim accordingly failed on the burden of proof resting on the claimant.

p. 2

Legal principles established

#
  • A resignation notice may be varied by mutual agreement evidenced by correspondence between the parties, and an employee who accepts such variation cannot claim salary for a period not worked
  • A claim for expenses must be proved on a balance of probabilities; particulars said to be within the other party's knowledge do not relieve the claimant of the burden of proof

Court orders

#
  1. 1.The suit is dismissed
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction under the Employment and Labour Relations Court Act (employment relationship between the parties)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "George John Cardovilis v Simba Corporation Limited [2019] KEELRC 665 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/665/eng@2019-10-16

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