Pauline Kathure Kiraithe v Nation Media Group Limited [2021] KEELRC 2209 (KLR)
The bottom line
#An employee who leaves before serving her contractual notice can end up paying the employer for the notice period she did not work.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was forced out of employment on 9.11.2012 or voluntarily exited
The Claimant voluntarily exited; she verbally sought a waiver of the notice period and was given a conditional waiver which she neither accepted in writing nor complied with, instead leaving to join a new employer
The resignation letter gave three months' notice under clause 11(c). The employer's reply offered release on condition of payment of Kshs. 681,007 for the outstanding 70 days, with an acceptance clause the Claimant never signed. Her own email to Mr. David Kiambi corroborated that she requested an early release. She did partial clearance and reported to her new employer, showing she was not forced out.
Whether the Claimant was entitled to house allowance at 15% of basic salary
The claim was dismissed because the payslips showed consolidated gross pay and the employer complied with section 31(2) of the Employment Act
Section 31 obliges an employer to provide housing or a house allowance, but subsection (2) permits a consolidated salary incorporating housing. The payslips showed gross pay of basic plus car allowance; the Claimant, a HR professional aware of her rights, never complained of non-payment of house allowance during her years of service, so the basic component was treated as inclusive of house allowance.
Whether the Claimant was entitled to accrued leave days and bonus
Both claims were dismissed; the leave was utilised to offset the notice period with her consent, and the bonus was discretionary and unearned because she left before year end and appraisal
The Claimant authorised in her resignation letter that accrued leave be used as part of the notice period, and she admitted only 15 days were outstanding, which the employer utilised. No particulars or evidence of additional leave were tendered. Her contract did not provide for bonus; bonus was discretionary, payable on a full-year basis after appraisal, and she exited before the year ended.
Whether the Respondent's counterclaim for salary in lieu of notice and car insurance balance should be allowed
The counterclaim was allowed; the Claimant breached clause 11(c) of her contract by exiting with 70 days of notice outstanding and without paying salary in lieu
Having found the Claimant breached her contract by leaving with 70 days of the notice period unserved and unpaid, the court held the Respondent entitled to Kshs. 681,007 salary in lieu of notice, plus Kshs. 6,391.70 car insurance balance which the Claimant did not dispute.
Legal principles established
#- A conditional waiver of a notice period, offered to an employee and left unsigned, does not force the employee out; the employee who neither accepts the conditions nor serves the notice breaches the contract and is liable for salary in lieu of notice under clause 11(c) and section 36 of the Employment Act
- Where payslips describe remuneration as gross pay comprising basic pay and allowances without complaint during service, the basic component is treated as a consolidated salary inclusive of house allowance under section 31(2) of the Employment Act
Court orders
#- 1.The Claimant's suit is dismissed
- 2.The counterclaim is allowed by awarding the Respondent Kshs. 687,398.70
- 3.Costs and interest from the date hereon
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (suit and counterclaim arising from termination of employment contract)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bamburi PLC v Macharia (Employment and Labour Relations Cause E753 of 2022) [2025] KEELRC 1715 (KLR)[2025] KEELRC 1715 (KLR)12 Jun 2025
- Omollo & 9 others v Agro-Tech Consultants & another (Cause 374 of 2019) [2023] KEELRC 1079 (KLR)[2023] KEELRC 1079 (KLR)18 Apr 2023
- Kitela v Nesco Services Limited (Cause 1649 of 2017) [2022] KEELRC 110 (KLR)[2022] KEELRC 110 (KLR)10 Jun 2022
Cite this brief
#Cite this brief
Caselaw, "Pauline Kathure Kiraithe v Nation Media Group Limited [2021] KEELRC 2209 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2209/eng@2021-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.