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ELRCPartially AllowedNot stated in the judgment (originally filed in the Chief Magistrate's Court vide Plaint dated 24th September 2008; transferred to this Court by Order of the High Court dated 3rd February 2014)· [2019] KEELRC 1428 (KLR)

Air Kenya Express Limited v Leonard Odhiambo [2019] KEELRC 1428 (KLR)

Employment and Labour Relations Court
28 May 2019
HWHellen Wasilwa
661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a former employee to pay his employer KShs. 385,714 for resigning without giving the 3 months' notice his contract required.

What this practically means

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Executive summary

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The Claimant sued the Respondent, a former employee, for breach of the employment contract, seeking special damages of KShs. 385,714 computed as 3 months' salary in lieu of notice (based on a salary of KShs. 270,000) less 33 leave days due, plus interest and costs. The suit originated in the Chief Magistrate's Court by Plaint dated 24th September 2008 and was transferred to this Court by High Court Order of 3rd February 2014. The Claimant's case, pleaded through the witness statement of Joan Wanja Githinji, was that the contract dated 10th August 2006 provided that either party could terminate it on 3 months' notice, which the Respondent failed to give when he resigned. The Respondent, by Defence and Counterclaim dated 5th November 2008, contended that he left because the Claimant frustrated him and failed to pay his dues, and counterclaimed for unpaid salary for February and March 2008 and differential salary for the position of corporate quality manager from 21st February 2006 to 30th June 2008. The cause proceeded ex parte after the Respondent failed to attend despite service; his counterclaim therefore went undefended by evidence and the Claimant's case remained uncontroverted. The court found that the contract could only be terminated upon either party giving 3 months' notice, which the Respondent failed to do. It awarded the claimed notice pay of KShs. 385,714 (KShs. 810,000 less KShs. 424,286 for 33 leave days), less statutory deductions, and ordered the Respondent to pay costs and interest at Court rates from the date of judgment.

Key legal issues

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Termination of the employment contract without the contractual 3 months' notice

Holding

The court found the contract dated 10th August 2006 (as pleaded, Clause 13) required 3 months' notice from either party and that the Respondent breached it by resigning without notice, awarding the claimed special damages of KShs. 385,714 computed as 3 months' salary less the value of 33 leave days

Reasoning

The Claimant's evidence was uncontroverted as the Respondent, though served, did not attend the hearing or file evidence. The court adopted the witness statement of Joan Wanja Githinji, found the contractual notice term proved, and applied the pleaded computation: 3 months' salary of KShs. 270,000 each less 33 leave days at 21 working days per month, yielding KShs. 385,714, subject to statutory deductions.

p. 2

Legal principles established

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  • Where an employment contract expressly provides for termination by 3 months' notice from either party, an employee who resigns without giving that notice is in breach and is liable to pay notice pay to the employer

Court orders

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  1. 1.Judgment for the Claimant; Respondent to pay 3 months' salary as notice pay: KShs. 810,000 less 33 days' leave value of KShs. 424,286, being KShs. 385,714, less statutory deductions
  2. 2.Respondent to pay costs of the suit
  3. 3.Interest at Court rates with effect from the date of the judgment
Jurisdiction invoked
Transferred from the Chief Magistrate's Court to the Employment and Labour Relations Court pursuant to the Order issued by the High Court on 3rd February 2014

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, "Air Kenya Express Limited v Leonard Odhiambo [2019] KEELRC 1428 (KLR)", Case Analysis (2019). Not stated in the judgment (originally filed in the Chief Magistrate's Court vide Plaint dated 24th September 2008; transferred to this Court by Order of the High Court dated 3rd February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1428/eng@2019-05-28

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