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ELRCDismissedMemorandum of Claim dated 15th September 2016· [2019] KEELRC 2212 (KLR)

Gilbert Katana Mkare v Hakika Transport Services Ltd [2019] KEELRC 2212 (KLR)

Employment and Labour Relations Court
21 February 2019
LNLinnet Ndolo
1,189 words in judgment
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The bottom line

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A Kenyan court threw out a truck driver's unfair termination claim, ruling he resigned voluntarily and never proved constructive dismissal in his pleadings.

What this practically means

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Executive summary

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This Employment and Labour Relations Court decision at Mombasa, delivered by Linnet Ndolo J on 21 February 2019, concerned a truck driver, Gilbert Katana Mkare, who claimed he was verbally terminated without cause on 4 March 2015 by Hakika Transport Services Ltd. He sought notice pay, three years' leave pay, service pay, three years' overtime, maximum compensation for unfair termination, a certificate of service and costs. The Respondent maintained that the Claimant voluntarily resigned on 4 April 2016 with insufficient notice, and counterclaimed one month's salary in lieu of notice under Section 38(c) of the Employment Act. The court framed three issues: unlawful termination, entitlement to remedies, and the counterclaim. Although the pleadings alleged verbal termination, the Claimant testified that a reduction of his daily rate from Kshs 1,065 to Kshs 400 in January 2016 amounted to constructive dismissal. Applying Galaxy Paints v Falcon Guards on issues flowing from pleadings, the court held constructive dismissal was neither pleaded nor proved. The Claimant worked for four months after the transfer without complaint and joined the Respondent's competitor at Bamburi in June 2016, indicating his resignation was motivated by a desire to remain at Bamburi. All claims for notice pay, leave pay (leave for 2016 having been exhausted), service pay (being an NSSF contributor) and unproved overtime were dismissed. The counterclaim also failed because the Respondent admitted paying a trip-based daily rate, inconsistent with a fixed monthly salary claim. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

No; constructive dismissal was not pleaded and not proved. The resignation was voluntary, prompted by the Claimant's desire to remain at Bamburi where he took up work with the Respondent's competitor.

Reasoning

The pleadings alleged verbal termination, but testimony introduced constructive dismissal for the first time. Applying Galaxy Paints, issues flow from pleadings. The Claimant worked four months after the transfer without complaint and joined R.K. Shanghani at Bamburi in June 2016, undermining any assertion of intolerable treatment.

p. 2
02

Whether the Respondent established its counterclaim for one month's salary in lieu of notice

Holding

No; the counterclaim failed because the Claimant was paid a daily trip-based rate, not a fixed monthly salary.

Reasoning

Although the Claimant gave no notice of resignation in breach of Section 38(c) of the Employment Act, the Respondent admitted paying a daily rate based on trips made, making a fixed monthly salary claim for notice pay untenable.

p. 3

Legal principles established

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  • Issues for determination in a suit generally flow from the pleadings as filed in court
  • A contributing NSSF member is not entitled to service pay
  • An employer who paid a daily rate based on trips made cannot claim a fixed monthly salary as notice pay

Court orders

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  1. 1.The Claimant's claim for compensation for unfair termination is dismissed
  2. 2.The claim for notice pay is dismissed
  3. 3.The claim for leave pay is dismissed
  4. 4.The claim for service pay is dismissed
  5. 5.The claim for overtime compensation is dismissed
  6. 6.The Respondent's counterclaim is dismissed
  7. 7.Each party will bear their own costs

Authorities

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Legislation

  • Employment ActSection 38(c)

Cases cited (3)

  • Galaxy Paints Company Limited v Falcon Guards Ltd
    [2000] 2 EA 385 (CAK)
  • Coca Cola East and Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Lear Shighadi Sinoya v Avtech Systems Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment dispute)

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, "Gilbert Katana Mkare v Hakika Transport Services Ltd [2019] KEELRC 2212 (KLR)", Case Analysis (2019). Memorandum of Claim dated 15th September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2212/eng@2019-02-21

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