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ELRCDismissedCause No 2076 of 2015· [2020] KEELRC 1127 (KLR)

Dorothy Jemator Kimengech v David Mukii Mereke t/a Mereka & Company Advocates [2020] KEELRC 1127 (KLR)

Employment and Labour Relations Court of Kenya
6 May 2020
3,036 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, an advocate employed by the respondent law firm from 1st April 2011 under terms revised on 28th February 2013, claimed she was entitled to 15% commission on net fees from clients she introduced through her own efforts. She alleged she introduced the IEBC to the firm and sourced election petition briefs from it, upon which the firm received Kshs 5,823,134/=, with net fees of Kshs 4,679,480/= yielding a commission of Kshs 701,922/= that the respondent refused to pay. She further claimed that the respondent made her working conditions difficult, forcing her to resign on 30th September 2015, amounting to constructive dismissal. The respondent denied the claimant introduced IEBC, asserting the firm was already on the client's panel of advocates, and contended the claimant was assigned merely to follow up on pending fee-notes. He counterclaimed for Kshs 150,000/= paid to the claimant and Kshs 150,000/= on a car loan. The court found the claimant failed to prove constructive dismissal, holding the hostile work environment was mutually created and sustained. Taking judicial notice that IEBC procurements follow tendering under the Public Procurement and Disposals Act, the court found it more probable that the claimant was assigned fee-collection duties, outside the commission clause. Both the claim and the counterclaim were dismissed with no order as to costs.

Key legal issues

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01

Whether the claimant was constructively dismissed

Holding

The claim failed because the strained work environment was mutually created and sustained by both parties, and neither could be blamed

Reasoning

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.

p. 3
02

Whether the claimant introduced IEBC to the respondent so as to earn 15% commission

Holding

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

Reasoning

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.

p. 4
03

Whether the respondent's counterclaim succeeded

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The claim is dismissed
  2. 2.The counterclaim by the respondent is dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Public Procurement and Disposals Actnot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment and Labour Relations Court Act)

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, "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.