Herbert Wafula Waswa v Kenya Wildlife Services (Civil Appeal 14 (A) of 2020) [2020] KEELRC 78 (KLR)
The bottom line
#A Kenyan court ruled that an employee who resigned voluntarily cannot later claim constructive dismissal without proving the employer broke the contract.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant's resignation constituted constructive dismissal
The appeal fails; the Appellant did not prove constructive dismissal. His resignation letter expressed satisfaction and a desire to pursue other interests, did not cite employer frustration, was written only ten days into a lawful suspension, and he actively pressed for acceptance of his resignation.
The court applied the Western Excavating contractual test and the Coca Cola East & Central Africa principles: repudiatory breach going to the root of the contract, an objective test, causation, no waiver or acquiescence, and the burden on the employee. The resignation letter thanked the employer and gave two months' notice; a reminder followed months later seeking acceptance. Suspension is not unlawful per se and ten days on suspension was not unduly long. The employee's own conduct negated a causal link between employer conduct and resignation.
Whether the Appellant could benefit from the Respondent's failure to call viva voce evidence
No; the burden of proving unfair or wrongful dismissal rests on the employee under section 47(5) of the Employment Act, and having failed to prove constructive dismissal, the Appellant could not benefit from the Respondent's failure to call witnesses.
Section 47(5) of the Employment Act places the burden of proving that unfair termination or wrongful dismissal occurred on the employee, while the employer bears the burden of justifying the grounds of termination. Since the Appellant discharged neither, the evidential gap left by the Respondent's silence could not rescue his claim.
Whether the trial court erred in denying the Appellant costs
No; costs follow the event but the court has discretion, and an appellant who failed in his major claim for damages for constructive dismissal had no automatic entitlement to costs.
Although the Appellant succeeded on terminal dues, he lost the principal claim for constructive dismissal. The trial Magistrate's direction that each party bear their own costs was a proper exercise of discretion and disclosed no error warranting appellate interference.
Legal principles established
#- Resignation is a unilateral act on the part of the employee whose efficacy is not dependent on any action by the employer; once a resignation letter is handed in, the employment relationship comes to an end
- In a claim of unfair termination or wrongful dismissal, the burden of proving the ingredients of unfairness and wrongfulness lies with the employee under section 47(5) of the Employment Act
- A first appellate court must re-evaluate and reconsider the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal fails and is dismissed
- 2.Each party will bear their own costs
- On appeal from
- Magistrate's Court, Voi
- Jurisdiction invoked
- First appeal from the Magistrate's Court in an employment claim (Employment and Labour Relations Court appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Herbert Wafula Waswa v Kenya Wildlife Services (Civil Appeal 14 (A) of 2020) [2020] KEELRC 78 (KLR)", Case Analysis (2020). Appeal from Voi Magistrate's Court Employment Claim (Memorandum of Appeal dated 18th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/78/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.