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ELRCPartially AllowedNot stated in the judgment (Memorandum of Claim)· [2021] KEELRC 1357 (KLR)

John Kimingi v Damco Logistics Kenya Limited [2021] KEELRC 1357 (KLR)

Employment and Labour Relations Court
2 June 2021
NMNzioki wa Makau
2,789 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a secretive workplace investigation pushed an employee to resign, awarding him a full year's salary.

What this practically means

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Executive summary

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The Claimant, employed from 1 April 2008 as a Bond Clerk and later Team Leader in the Bonds Department, resigned on 22 December 2016 and sued for constructive dismissal and terminal dues. He alleged that an email of 17 November 2016 from the Respondent's Head of CSO, Gregor Moser, falsely suggesting he owned a truck used by the company, together with threats of investigation and an unsolicited exit-procedures email, formed a malicious plot to discredit and push him out. The Respondent contended that his performance had declined, that he resigned voluntarily after requesting an unavailable redundancy package, and that it was merely enforcing its Conflict of Interest Policy which he had signed. Both parties testified and filed submissions. The Claimant relied on the Court of Appeal's decision in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga and its constructive dismissal principles, including repudiatory breach, the objective test and causation. The Respondent relied on the same authority, arguing its conduct fell far short of fundamental breach and that an ordinary employee would not resign over such an email. The court accepted the Claimant's case, finding the conflict-of-interest inquiry was conducted in a covert manner with no one willing to state the concerns, placing the Claimant under a cloud of suspicion as in the Coca Cola case. Judgment was entered for the Claimant with compensation under Section 49 of the Employment Act at the maximum of 12 months' gross salary (Kshs. 1,669,265.04), plus costs and interest from the date of judgment. The tabulated terminal dues, notice pay and general damages were not separately awarded.

Key legal issues

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01

Whether the Respondent's conduct amounted to constructive dismissal

Holding

The court found constructive dismissal, holding that the covert manner of the conflict-of-interest inquiry placed the Claimant under a cloud of suspicion and made performance of the contract impossible.

Reasoning

The Claimant was investigated over an alleged truck ownership through a 'cloth and dagger' process with no clear statement of concerns and no participation by him. Following the Coca Cola v Maria Kagai Ligaga principles, the employer's conduct amounted to a repudiatory breach going to the root of the contract, and the Claimant resigned within a reasonable time in response to that conduct, satisfying the causal link and objective test.

p. 3
02

Whether the Claimant was entitled to compensation for unlawful termination

Holding

The court awarded compensation under Section 49 of the Employment Act at the maximum of 12 months' gross salary, considering the Claimant's long and diligent service of about 9 years.

Reasoning

The court noted that the Employment Act permits compensation up to a maximum of twelve months' salary in constructive dismissal cases. Weighing the Claimant's diligent service of approximately nine years, exemplary appraisals and the circumstances of his exit, the court found an award of 12 months' gross salary of Kshs. 139,105.42 per month, totalling Kshs. 1,669,265.04, appropriate.

p. 3

Legal principles established

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  • Constructive dismissal requires repudiatory breach by the employer that goes to the root of the employment contract, with the employer's conduct as the effective cause of the employee's departure, assessed objectively.
  • An employer that places an employee under a cloud of suspicion through an opaque inquiry, making it impossible for the contract of service to be performed as expected, constructively dismisses the employee.

Court orders

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  1. 1.Compensation in terms of Section 49 of the Employment Act to a maximum 12 months - Kshs. 1,669,265.04
  2. 2.Costs of the suit to the Claimant
  3. 3.Interest on the sum awarded from date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment ActSection 49

Cases cited (4)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Peter Kaburu Karanja v Kirinyaga Construction (K) Limited
    [2020] eKLR
  • David Waithaka v World Vision International
    [2019] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution (fair labour practices) as invoked in submissions

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, "John Kimingi v Damco Logistics Kenya Limited [2021] KEELRC 1357 (KLR)", Case Analysis (2021). Not stated in the judgment (Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1357/eng@2021-06-02

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