Jonathan Ciano v Uchumi Supermarkets Limited [2022] KEELRC 379 (KLR)

Relying on Black's Law Dictionary and Edwin Beiti Kipchumba v National Bank of Kenya, the court held resignation is a unilateral act of termination at the instance of the employee. The claimant unequivocally announced his intention to relinquish the CEO position with immediate effect, and the Employment Act does not require employer acceptance for the notice to take effect. The resignation was complete on its own.

Following William Kariuki v Kenya Civil Aviation Authority, Lottering v Stellenbosch Municipality and Kennedy Obala Oaga v Kenya Ports Authority, the court found that once resignation took effect the employment contract was extinguished and the employer lost jurisdiction, including the right to terminate. There was nothing to terminate; the purported termination was akin to flogging a dead horse and was declared null and void.

Since the termination was null and void for want of an existing employment relationship, it made no sense to inquire into its fairness. Citing Kennedy Obala Oaga v Kenya Ports Authority, the court held that to declare such a decision unfair would suggest it has legal consequences; it must be treated as if never made. Consequently no finding of unfair or unlawful termination was made.

With no finding of unlawful termination, compensatory damages could not be sustained. The respondent acknowledged 24 accrued leave days and salary for days worked. The respondent's defence admitted terminal dues computed at a gross sum of Kshs 6,574,850.95/=, and there was no evidence of payment, so the claimant was entitled to that sum, to be released forthwith.