George John Cardovilis v Simba Corporation Limited [2019] KEELRC 665 (KLR)
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
#Key legal issues
#Whether there was a mutual variation of the resignation terms
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
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.
Whether the Claimant worked in April 2017 so as to earn April salary
No - no evidence was presented that the Claimant worked beyond March 2017
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.
Whether the claim for expenses of Kshs. 13,540/- was proved
No - the Claimant did not avail receipts or proof of the sums claimed
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.
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.The suit is dismissed
- 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.