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ELRCDismissedNot stated in judgment· [2019] KEELRC 1657 (KLR)

Benjamin Muriuki Selestino v Cobra Security Company Limited [2019] KEELRC 1657 (KLR)

Employment and Labour Relations Court
16 May 2019
NMNzioki wa Makau
1,867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee claiming constructive dismissal in Kenya must prove it, or a resignation triggered by personal reasons will end the case.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from November 2013 as a night guard earning Kshs. 6,000/- per month, sued alleging constructive dismissal on 21st February 2017, citing unfair labour practices including failure to provide working equipment, non-payment and unlawful deductions of salary, harsh conditions and inconsistent, delayed payment. He sought compensation of Kshs. 135,960/-, unpaid dues of Kshs. 202,540/-, NHIF and NSSF remittances, overtime of Kshs. 250,800/-, annual leave, house allowance, a uniform fee refund, a certificate of service and costs. The Respondent denied constructive dismissal, asserting a one-year contract signed in January 2016 and a voluntary resignation over family problems. The court distilled two issues: whether the Claimant resigned voluntarily or was constructively dismissed, and whether he was entitled to the reliefs sought. Applying the Court of Appeal's definition of constructive dismissal in Coca Cola v Ligaga and the burden-of-proof principle in Eastern Produce v Mukosero, the court held the Claimant failed to prove repudiatory breach or an intolerable working environment. His resignation letter cited family problems only; he contradicted himself regarding the contract, leave and shifts; and the duty roster showed no overtime. The suit was dismissed with costs to the Respondent on 16th May 2019.

Key legal issues

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01

Whether the Claimant resigned voluntarily or was constructively dismissed

Holding

The Claimant resigned voluntarily; constructive dismissal was not proved

Reasoning

The Claimant's resignation letter cited family problems, not any of the pleaded particulars of constructive dismissal. He was shown to have lied about the contract and about leave and shift arrangements. He failed to prove repudiatory breach or an intolerable working environment on a balance of probabilities.

p. 2
02

Whether the Claimant was entitled to the reliefs sought

Holding

No relief was granted; the claim failed with the constructive dismissal claim

Reasoning

Having found the resignation voluntary, compensation for unfair termination did not arise, and the pleaded dues, overtime, leave pay and house allowance were not proved. The suit was dismissed with costs to the Respondent.

p. 2

Legal principles established

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  • Constructive dismissal occurs where the employer commits a repudiatory breach of the employment contract or creates a hostile working environment forcing the employee to resign.
  • The burden of proving constructive dismissal lies on the claimant on a balance of probabilities and does not shift.

Court orders

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  1. 1.The suit be dismissed with costs to the Respondent
  2. 2.It is so ordered

Authorities

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Cases cited (4)

  • Alfred Wekesa Katami v Registered Trustees of Catholic Diocese of Kitale & 3 others
    [2016] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Western Excavating (ECC) Ltd v Sharp
    [1978] ICR 222 or [1978] QB 761
  • Eastern Produce (K) Ltd v John Lumumba Mukosero
    [2008] eKLR
Jurisdiction invoked
Employment and Labour Relations Court, original jurisdiction over employment and labour relations claims

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Benjamin Muriuki Selestino v Cobra Security Company Limited [2019] KEELRC 1657 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1657/eng@2019-05-16

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