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ELRCDismissedCause No 267 of 2017· [2022] KEELRC 582 (KLR)

James Shakombo v Simba Telecom Limited [2022] KEELRC 582 (KLR)

Employment and Labour Relations Court of Kenya
10 March 2022
JGJacob Gakeri
4,304 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed both an employee's constructive dismissal claim and the employer's desertion counterclaim because neither side proved their case.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unfair, wrongful and unlawful constructive dismissal, claiming a declaration, return of his KCSE certificate and motorbike logbook, notice pay, outstanding salaries, leave pay, fuel subsidy, service pay, 12 months' compensation and aggravated damages. The Respondent denied the constructive dismissal, contending the Claimant absconded duty after a Kshs.30,000 shortage in August 2015, and counterclaimed for Kshs.28,159.40 and one month's salary in lieu of notice. The court framed two issues: whether the Claimant was constructively dismissed or absconded duty, and whether he was entitled to the remedies sought. Applying the contractual test for constructive dismissal from Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga and Western Excavating v Sharp, the court held that the Claimant led no direct evidence of any repudiatory breach: he did not identify who instructed him to return stock, produced no payslips evidencing the alleged deductions, and could not dislodge the Gloria Auma email of 13th August 2015 reporting that he had absconded. Equally, the Respondent failed to prove desertion, having issued no notice to show cause, no termination letter, and having failed to notify the Labour Officer, contrary to the principles in Felistas Acheha Ikatwa and Stanley Omwoyo Onchweri. Neither party discharged its burden on a balance of probabilities. The claim was dismissed, the counterclaim was dismissed, and the Respondent was ordered to release the Claimant's KCSE certificate within 30 days. All other prayers were dismissed. The judgment was delivered virtually at Nairobi on 10th March 2022 by Dr. Jacob Gakeri, J. No costs order appears in the judgment.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

No. The Claimant led no direct evidence of any repudiatory conduct by the employer; his allegations on instructions to return stock and salary deductions were unsupported.

Reasoning

The court adopted the contractual test in Coca Cola v Ligaga and Western Excavating v Sharp. The Claimant did not disclose who instructed him to return the cards, led no evidence of the deductions or payslips, and his testimony contradicted the pleadings on timing. The Gloria Auma email of 13th August 2015 showed an impasse, not a repudiatory breach.

p. 6
02

Whether the Claimant absconded/deserted duty as the Respondent alleged

Holding

No. The Respondent failed to prove desertion; it made no notice to show cause and did not notify the Labour Officer.

Reasoning

Although Gloria Auma contacted the Claimant, the Respondent adduced no evidence of a notice to show cause or termination letter as required by Felistas Acheha Ikatwa and Stanley Omwoyo Onchweri. Desertion requires intention not to return plus employer efforts to reach the employee. The Respondent's counterclaim, founded on desertion, therefore failed.

p. 7
03

Whether there was a contract of service

Holding

Not contested; nothing turned on it as the Respondent did not deny employing the Claimant.

Reasoning

The Respondent only disputed the mode of remuneration (retainer plus commission on sales) but acknowledged employment. The payslips and appointment letter confirmed the employment relationship with probation, 21 days' annual leave and termination by one month's notice.

p. 5

Legal principles established

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  • Constructive dismissal is grounded on a breach of a fundamental term of the employment contract by the employer making it untenable for the employee to remain, compelling resignation.
  • An employer alleging desertion must demonstrate efforts made to have the employee resume duty, including at least a notice to show cause that termination on the ground of desertion is being considered.
  • A party bears its own burden of proof; where neither party discharges the burden, both claims fail.

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.The Respondent's counterclaim founded on the allegation of absconding duty or desertion is dismissed
  3. 3.Respondent to release the Claimant's K.C.S.E certificate within 30 days
  4. 4.The other prayers are dismissed

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 41
  • Employment ActSection 35
  • Employment ActSection 40
  • Evidence ActSection 8(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (17)

  • Stanley Mungai Muchai v National Oil Corporation of Kenya
    [2012] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Pamela Nelima Lutta v Mumia Sugar Co. Ltd
    [2017] eKLR
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Janet Nyandiko v Kenya Commercial Bank Ltd
    [2017] eKLR
  • National Bank of Kenya v Anthony Njue John
    [2019] eKLR
  • Tom Otieno Midianga v Wilham Kenya
    [2021] eKLR
  • Moses Kaunda Moro v CMC Motors Group Ltd
    [2013] eKLR
  • Loice Rose Obengo v Nyanza Reproductive Health Society
    [2013] eKLR
  • Margaret Njeri Muiruri v Bank of Baroda
    [2014] eKLR
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited
    [2017] eKLR
  • Makin v Attorney General of New South Wales
    [1894] AC 57
  • Seabolo v Belgravia Hotel
    [1997] 6 BLLR 829 (CCMA)
  • Western Excavating ECC Ltd v Sharp
    [1978] 2 WLR 344
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Premier Construction Limited v Josephat Bwire Lukale & 5 others
    [2017] eKLR
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Relations Act (employment dispute; no specific constitutional article invoked in the judgment)

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, "James Shakombo v Simba Telecom Limited [2022] KEELRC 582 (KLR)", Case Analysis (2022). Cause No 267 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/582/eng@2022-03-10

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