Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 286 of 2017· [2019] KEELRC 1750 (KLR)

Anthony Karanja Chege v Attorney General, acting for the Office of the President, Ministry of Interior and Coordination of National Government [2019] KEELRC 1750 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
7 March 2019
2,566 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that suspending an employee without pay for four months, with no hearing, forced his resignation and counts as unfair constructive dismissal.

What this practically means

#

Executive summary

#
The claimant, employed on 10th December 2010 as Assistant Chief Grade Two for Nyakiambi Sub-Location and confirmed in 2013, was issued a show cause notice on 7th July 2015 accusing him of leaking information to illicit brew sellers. He replied but received no response. On 17th July 2015 he was issued a further notice of gross misconduct and suspended without salary effective 13th July 2015. He replied on 13th August 2015, supported by a letter from the Deputy County Commissioner attesting to his good track record, but again received no response. Kept without salary for four months, he tendered his resignation on 2nd November 2015, which the respondent only acknowledged as accepted by letter of 9th March 2016, after purporting on 9th February 2016 to pardon and severely warn him. The respondent called no evidence. The court found the claimant's employment proved by his appointment and confirmation letters, and held that the unexplained non-payment of salary during suspension, without a hearing, was a fundamental breach going to the root of the contract, rendering his resignation a constructive dismissal and an unfair labour practice contrary to sections 45, 41 and 43 of the Employment Act, 2007. Applying the Coca-Cola v Ligaga decisions on constructive dismissal, the court awarded ten months' gross salary as compensation (Ksh.264,040.00), notice pay, and unchallenged pro-rated leave pay of Ksh.54,849.60. Claims for salary beyond the resignation date, leave travelling allowance, post-resignation travel costs and general damages were declined. Costs were assessed at Ksh.20,000.00. Judgment delivered at Nakuru on 7th March 2019 by M. Mbaru, J.

Key legal issues

#
01

Whether the claimant was constructively dismissed

Holding

Yes - issuing show cause notices, suspending the claimant without salary and never according him a hearing amounted to fundamental breach of the employment contract, and his resignation amounted to constructive dismissal

Reasoning

The claimant was issued a show cause notice on 7th July 2015 which he replied to, but no hearing was convened. A second notice of gross misconduct and suspension followed on 17th July 2015 with suspension without salary from 13th July 2015. Despite responses and supportive correspondence from the Deputy County Commissioner, the respondent never responded. He was kept without salary from July to November 2015, forcing his resignation. The court found this unjustified conduct constituted a fundamental breach entitling him to resign and to be treated as constructively dismissed.

p. 4
02

Whether the constructive dismissal was unfair

Holding

Yes - the dismissal was unfair under sections 45, 41 and 43 of the Employment Act, 2007

Reasoning

There was no justification for keeping the claimant without salary from July to November 2015. The lack of a hearing on the allegations, the indefinite suspension without pay, and the failure to process his dues even after the pardon of 9th February 2016 offended sections 45, 41 and 43 of the Employment Act. The respondent tendered no evidence in defence, and the claimant's pleaded intolerable working conditions justified compensation.

p. 4
03

Quantum of compensation

Holding

Ten months' gross salary awarded as compensation, plus notice pay and leave pay; other heads declined

Reasoning

The claimant earned a gross monthly wage of Ksh.26,404.00 at resignation. The court found ten months' gross salary appropriate compensation (Ksh.264,040.00), awarded one month's notice pay, and unchallenged pro-rated leave of Ksh.54,849.60. Claims for salary beyond the resignation date, leave travelling allowance, post-resignation travel costs and general damages were declined as unsupported or already redressed by compensation.

p. 4

Legal principles established

#
  • Resignation is a legitimate mode of terminating employment, and once notice is served and received, the employer cannot compel the employee to continue working
  • An employee may resign following an employer's conduct constituting repudiation of the contract, and must plead constructive dismissal

Court orders

#
  1. 1.Declaration that the claimant was constructively dismissed by the respondent and that this is an unfair labour practice
  2. 2.Compensation for unfair termination of employment of Ksh.264,040.00
  3. 3.Notice pay of Ksh.26,040.00
  4. 4.Leave pay due of Ksh.54,849.60
  5. 5.Costs of the suit assessed at Ksh.20,000.00

Authorities

#

Legislation

  • Employment Act, 2007section 45
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43

Cases cited (2)

  • Maria Kagai Liganga versus Coca-Cola East Central Africa Limited
    (2013) eKLR
  • Coca-Cola East Central Africa Limited versus Maria Kagai Ligaga
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Employment and Labour Relations Court Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Anthony Karanja Chege v Attorney General, acting for the Office of the President, Ministry of Interior and Coordination of National Government [2019] KEELRC 1750 (KLR)", Case Analysis (2019). Cause No. 286 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1750/eng@2019-03-07

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