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ELRCPartially AllowedCause No 963 of 2016· [2019] KEELRC 1406 (KLR)

Livingstone Kingi Yaa v Unik Driving School [2019] KEELRC 1406 (KLR)

Employment and Labour Relations Court
14 June 2019
2,222 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a driving instructor who walked off the job resigned voluntarily, so his employer owed only unpaid annual leave pay, not termination compensation.

What this practically means

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Executive summary

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The Claimant, a Driving Instructor employed by the Respondent from 2009 at a monthly salary of Kshs. 15,000, claimed he was summarily terminated on 5th August 2016 for not wearing the work uniform. He sought notice pay, seven years' annual leave pay, salary for days worked in August 2016, service pay, house allowance, twelve months' compensation for unfair termination, a certificate of service, costs and interest. The Respondent denied termination, asserting the Claimant refused to wear the uniform and abandoned employment, handing a paper bag with uniforms to the Director and declaring he did not wish to continue working. Three Respondent witnesses - a Supervisor, a Mechanic and the Director - testified. The court accepted the Respondent's version, holding the Claimant left employment of his own volition, and dismissed his narrative of a new Management and victimisation as diversionary and unsupported. Notice pay and compensation for unfair termination were refused. Annual leave pay for seven years was allowed at Kshs. 84,807, less Kshs. 8,400 already paid, yielding Kshs. 76,407, since the Respondent produced no documents showing leave taken or paid. Service pay was refused for lack of evidence that the Claimant's N.S.S.F account was dormant, and house allowance was refused as unsupported and unparticularised. The court ordered a certificate of service to issue, made no order on costs, and granted interest at 14% per annum from the date of judgment until payment in full. Judgment was delivered at Mombasa on 14th June 2019 by James Rika, Judge.

Key legal issues

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01

Whether the Claimant was terminated or resigned voluntarily

Holding

The court held the Claimant left employment of his own volition after refusing to wear the uniform; his contract was not terminated by the Respondent.

Reasoning

The court found the Respondent's witnesses consistent and convincing: the Claimant was provided 2 shirts and 4 t-shirts, reported to work without uniform, and handed a paper bag with uniforms to the Director saying he did not wish to continue. The Claimant's narrative of victimisation over a new Management was held to be diversionary and unsupported by any evidence, including in cross-examination of the Respondent's witnesses.

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02

Entitlement to notice pay and compensation for unfair termination

Holding

Both prayers declined because there was no termination by the Respondent to justify; even if the Respondent had been at fault, the offer to reinstate would have been sufficient remedy.

Reasoning

The court reasoned that the Respondent had consistently been willing to have the Claimant back from the inception of the dispute. The Claimant declined to return on the flimsy ground that the Respondent might find another ground to dismiss him. The court held the Respondent cannot be asked to justify termination where the employee walked out and refused reinstatement.

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03

Annual leave pay

Holding

Allowed for 7 years at Kshs. 84,807 less Kshs. 8,400 already paid, i.e. Kshs. 76,407.

Reasoning

The Respondent paid Kshs. 8,400 but produced no evidence that the Claimant went on leave or was paid for the remainder of the period worked. The Respondent's witness could not clarify how long the Claimant worked for Rocky Driving School before returning. In the absence of contradicting documents, the court credited the Claimant's claim.

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Legal principles established

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  • An employee who abandons employment of his own volition cannot hold the employer to justify termination or be found liable for notice pay and compensation for unfair termination.
  • In the absence of documents from the employer contradicting an employee's claim for annual leave, the employee's evidence on leave entitlement will be accepted.

Court orders

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  1. 1.The Respondent shall pay to the Claimant pay in lieu of annual leave at Kshs. 76,407
  2. 2.Certificate of Service to issue
  3. 3.No order on the costs
  4. 4.Interest allowed at 14% per annum from the date of Judgment till payment is made in full

Authorities

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Legislation

  • N.S.S.F (implied, through N.S.S.F Statement of Accounts)contributions
Jurisdiction invoked
Employment and Labour Relations Court, Employment Act claims

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, "Livingstone Kingi Yaa v Unik Driving School [2019] KEELRC 1406 (KLR)", Case Analysis (2019). Cause No 963 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1406/eng@2019-06-14

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