Raymond Mboya Ndiege v Attorney General & 2 others [2019] KEELRC 788 (KLR)
The bottom line
#A Kenyan court ruled an employer's silent four-year 'acceptance' of a rejected resignation was actually an unfair dismissal, awarding the employee over KShs 1.35 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim filed in 2014 was time barred under section 90 of the Employment Act
The claim was not time barred because the cause of action accrued on 25th May 2012 when the Respondent first officially communicated that the Claimant's resignation had been accepted
The Claimant tendered a resignation on 27th August 2008 which the Respondent rejected the same month, directing him to proceed on 3 months' compulsory leave. There was no correspondence rescinding that rejection until the letter of 25th May 2012, which for the first time treated the 2008 resignation as accepted. The court held this later communication was when the cause of action arose, so the claim filed in 2014 fell within the 3-year limitation period under section 90 of the Employment Act 2007.
Whether the Claimant resigned or was terminated
The Claimant never resigned; his initial resignation was rejected and his employment was effectively terminated by the Respondent's letter of 25th May 2012
The Claimant's resignation of 27th August 2008 was rejected by the Respondent's letter of 28th August 2008, which upheld a directive that he proceed on 3 months' compulsory leave. He handed over and proceeded on leave but was never paid salary during the leave and never had his employment status communicated to him. There was no correspondence rescinding the rejection of the resignation until 25th May 2012, so the Respondent's 2012 letter treating the resignation as accepted was untrue and operated as a constructive dismissal.
Whether the termination was fair and justified
The termination was unfair and unjustified as it was effected without informing the Claimant of the allegations or affording him a disciplinary hearing
Although the Respondent may have found the Claimant culpable of mismanagement of accounts following a forensic audit, the findings were never given to the Claimant nor was he asked to submit to a disciplinary hearing. Section 41 of the Employment Act requires that even a culpable employee be informed of the alleged misconduct and taken through a hearing where evidence is called and he may call witnesses. The Respondent also failed to give reasons for the dismissal as required by section 43 of the Employment Act 2007.
Legal principles established
#- Where an employee's resignation is rejected by the employer, the employee remains in employment until the employer formally communicates a contrary position, and that later communication starts the running of time under section 90 of the Employment Act
- A purported retrospective acceptance of a previously rejected resignation amounts to constructive dismissal without due process
- Even where an employee is alleged to have committed misconduct, the employer must inform the employee of the allegations and afford a hearing with opportunity to call witnesses
Court orders
#- 1.1 month's salary in lieu of notice of KShs. 25,525
- 2.Unpaid salary from August 2008 to May 2012 for 45 months totalling KShs. 1,148,625
- 3.Service pay for 14 years totalling KShs. 178,675
- 4.Total award of KShs. 1,352,825 less statutory deductions
- 5.Issuance of a certificate of service
- 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment Act 2007 (including sections 90, 41 and 43) - original employment and labour relations jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raymond Mboya Ndiege v Attorney General & 2 others [2019] KEELRC 788 (KLR)", Case Analysis (2019). Employment Cause filed 20th March 2014 (Amended Memorandum of Claim filed 17th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/788/eng@2019-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.