Dorothy Jemator Kimengech v David Mukii Mereke t/a Mereka & Company Advocates [2020] KEELRC 1127 (KLR)
The bottom line
#The Employment Court dismissed both an employee's constructive dismissal and commission claim and her employer's counterclaim, ruling neither side proved its case.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was constructively dismissed
The claim failed because the strained work environment was mutually created and sustained by both parties, and neither could be blamed
The court reviewed the email exchange between the parties and found neither was controlled or restrained. The misunderstanding over the fee-sharing clause created, sustained and escalated the situation, with the claimant herself contributing. Constructive dismissal requires an intolerable environment created by the employer alone, which was not established here.
Whether the claimant introduced IEBC to the respondent so as to earn 15% commission
No. The fee-sharing agreement covered only new work introduced by the claimant's own efforts, not follow-up on pending fee-notes for work already secured through tender
Taking judicial notice that IEBC/IIEBC are public bodies bound by procurement law requiring tendering, the court held it unlikely new work could be assigned through a mere interview. On the balance of probability, the claimant was assigned to follow up pending fees for work already done, which fell outside the commission clause.
Whether the respondent's counterclaim succeeded
The counterclaim failed; the Kshs 150,000/= was a token of appreciation it would be inequitable to reclaim, and no sufficient evidence proved the remaining amounts
The respondent's own evidence conceded the payment was a token of appreciation for following up outstanding fees from IEBC. Having described it as such, the respondent could not turn around and reclaim it, and no evidence was tendered to prove the car loan amount.
Legal principles established
#- A party alleging constructive dismissal bears the burden of proving the allegations to the required standard
- Constructive dismissal requires a work environment so intolerable that the employee has no option but to quit
- An employee who contributes to creating and escalating a hostile work environment cannot sustain a claim of constructive dismissal
Court orders
#- 1.The claim is dismissed
- 2.The counterclaim by the respondent is dismissed
- 3.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorothy Jemator Kimengech v David Mukii Mereke t/a Mereka & Company Advocates [2020] KEELRC 1127 (KLR)", Case Analysis (2020). Cause No 2076 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1127/eng@2020-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.