William Njoroge v Kenol Kobil Limited [2022] KEELRC 526 (KLR)
The bottom line
#A Kenyan court ruled an employee was forced to resign, awarding him millions despite a signed settlement voucher and unconfirmed contract.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether at the time of termination the Claimant was on probation or his term was confirmed
- 2.Was Claimant constructively dismissed?
- 3.Was this a case of unlawful termination?
- 4.Is Claimant entitled to the prayers sought?
Key legal issues
#Whether the Claimant's probation/acting period had been lawfully extended
The extension was unlawful because the Claimant was not consulted and there was a two-month delay in communicating the extension; the contract was thus never confirmed.
Section 42 of the Employment Act permits extension of probation for not more than six further months only with the employee's agreement. No evidence showed the Claimant was consulted before the acting period was extended, and the two-month delay in communicating the extension breached fair labour practices. On expiry of probation, employment is confirmed right away.
Whether the Claimant was constructively dismissed
Yes - the abrupt recall from Rwanda without explanation, immediate withdrawal of expatriate benefits and work permit, and the pressure to resign amounted to a repudiatory breach constituting constructive dismissal.
Applying Coca Cola v Maria Kagai Ligana, the conduct of the employer is central in constructive dismissal. The Claimant had good performance ratings, yet was recalled abruptly without explanation, his expatriate benefits and work permit withdrawn, and he was left stranded with his family in Rwanda. The hostile environment forced his resignation, which was therefore a constructive dismissal amounting to unfair and unlawful termination.
Effect of the discharge voucher signed by the Claimant
The discharge voucher did not absolve the Respondent because it was signed under duress - the Claimant had lost his job abruptly and had not been paid his dues for months.
While discharge vouchers are generally binding, the court must consider each case's circumstances, and a voucher cannot bar inquiry into statutory obligations or the fairness of termination. Here the Claimant signed the voucher on 8th April 2016, months after his forced resignation, with terminal dues withheld, leaving him between a rock and a hard place. It was therefore not voluntary and did not absolve the Respondent.
Whether the Claimant was entitled to the contractual residue, education costs and family travel
No - these benefits were conditional on confirmation of the contract, which had not occurred, so they were declined.
The letter of appointment made the car loan, air travel, family shipment and children's school fees available only upon confirmation, which was to be in writing. Since the contract was never confirmed, the claimant was not entitled to the 28-month residue, education costs, or family travel, though his personal travel costs were refundable and compensation was awarded under section 49(1)(c).
Legal principles established
#- A discharge voucher per se cannot absolve an employer from statutory obligations and cannot preclude the court from inquiring into the fairness of a termination, especially where it was signed under pressure.
- On expiry of probation, employment is confirmed right away, and probation may only be extended for a further six months with the agreement of the employee.
- An employer whose conduct creates a hostile environment precipitating an employee's resignation commits constructive dismissal, a repudiatory breach of the employment contract.
Court orders
#- 1.Claim for 28 months contract residue declined
- 2.Award of 22 unpaid leave days amounting to Kshs 248,016
- 3.Education costs for the Claimant's children declined
- 4.Claimant's personal air travel costs from Rwanda to Nairobi to be refunded as worked out by the parties within 30 days from the date of judgment
- 5.Compensation for unlawful termination under Section 49(1)(c) Employment Act equivalent to 8 months' salary amounting to Kshs 2,705,632
- 6.Total award of Kshs 2,953,648
- 7.Costs of the suit awarded to the Claimant
- 8.Interest at court rates from the date of judgment until final payment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution and the Employment Act 2007
Relief refused
#28 months contract residue of Kshs 9,490,000
The contract had not been confirmed; the claimant was still on probation and the claim is not supported by section 49 of the Employment Act
Education costs for the Claimant's children ($3000 per year)
The Claimant's contract had not been confirmed, and school fees were payable only after confirmation
Air travel and shipment costs for the Claimant's family from Rwanda to Nairobi
Family travel and shipment benefits applied only upon confirmation of the contract; only the Claimant's personal travel costs were refundable
27 days unpaid leave claimed
Not proved with clear evidence; the court granted only 22 days as conceded by the Respondent
Costs
The Claimant is awarded costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore enter judgment in his favor for unlawful and wrongful termination of his employment due to constructive dismissal.
I find his contract had not been confirmed and he was still on probation. I am hesitant to award this prayer and is not supported by the provisions of section 49 of the employment act. The same is declined.
Having worked for Kobil groups of Company in Kenya and in Rwanda for about 20 years, it is only fair and prudent to award him compensation for unlawful termination under Section 49 (1)(c) Employment Act equivalent to 8 months amounting to 338,204 x 8= Kshs.2,705,632/=.
a discharge voucher per see cannot absolve an employer from statutory obligation and it cannot preclude the court from inquiring into the fairness of a termination.
in constructive dismissal, the issue is primarily the conduct of the employer and not the conduct of the employees unless there is waiver, estoppel or acquiescence is in issue.
Issues in the judgment
#Internal inconsistency on the date of the Claimant's resignation letter - the pleadings and remedies suggest 18th September 2015 while the decision and remedies reference 15th September 2015
Internal inconsistency on when the resignation letter was handed in the meeting date - the Claimant says he was invited to a meeting on 15th September 2015 but the resignation letter is dated 18th September 2015, while the judgment later states the resignation letter was on 15th September 2015
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muthama v Tetra Pak Limited & another (Cause 324 of 2017) [2024] KEELRC 1254 (KLR)[2024] KEELRC 1254 (KLR)3 May 2024
Cite this brief
#Cite this brief
Caselaw, "William Njoroge v Kenol Kobil Limited [2022] KEELRC 526 (KLR)", Case Analysis (2022). Cause No. 1352 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/526/eng@2022-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.