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ELRCPartially AllowedCause No 23 of 2020· [2022] KEELRC 1301 (KLR)

Kiprono v Unilever Tea Kenya Limited (Cause 23 of 2020) [2022] KEELRC 1301 (KLR)

Employment and Labour Relations Court
21 July 2022
OMONESMUS N MAKAU
3,777 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled the employee quit voluntarily, not constructively dismissed, but he still got his certificate of service and car.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2000 and last serving as Principal Logistics Assistant Manager, alleged constructive termination, contending that on September 13, 2017 he was forced by the HR officer and Managing Director to sign a resignation letter as a condition for receiving an exit package tied to a promised redundancy. He sought a declaration of unlawful constructive termination, maximum compensation under Section 49 of the Employment Act, a certificate of service, release of motor vehicle KCJ 688R, costs and interest. The Respondent maintained that the Claimant resigned voluntarily to pursue ministry work, that his terminal dues were paid, and that the car was repossessed after his loan fell into arrears and the company redeemed it. The court framed two issues: whether the resignation was voluntary or constructive, and entitlement to reliefs. Applying the Court of Appeal's test in Coca Cola East and Central Africa, requiring repudiatory breach causally linked to the resignation, the court found no breach or intolerable conduct, noting the resignation letter's grateful tone, the granted leave extensions, the employer's payment of the car loan balance, and the waiver of the Claimant's liabilities. The court held the resignation was voluntary; even a request to resign for an exit package would not be coercion. Compensation under Section 49 and gratuity were refused, the latter for want of proof, pension and NSSF being the only exit benefits shown. A certificate of service under Section 51 was granted, and the vehicle's release was allowed conditionally on refunding the loan redemption amount. The rest of the claims were dismissed with no costs, the suit having succeeded partially. Judgment was delivered online pursuant to Covid-19 directions.

Key legal issues

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01

Whether the Claimant's resignation was voluntary or a constructive dismissal

Holding

The resignation was voluntary; no repudiatory breach or intolerable conduct by the employer was proved

Reasoning

Applying the Coca Cola test of repudiatory breach with a causal link to the resignation, the court found the resignation letter's tone and language inconsistent with alleged coercion; the employer had granted leave extensions, paid the car loan balance, and waived liabilities. The Claimant had lost interest in employment to pursue ministry work.

p. 6
02

Entitlement to compensation under Section 49 and certificate of service under Section 51

Holding

Compensation refused as no unfair termination was proved; certificate of service granted

Reasoning

Since the constructive dismissal claim failed, no compensation under Section 49 lies. However, a certificate of service is a statutory entitlement under Section 51 and was granted regardless of the manner of separation.

p. 7
03

Entitlement to gratuity/send-off package and release of the motor vehicle

Holding

Gratuity claim failed for want of proof; release of the vehicle allowed conditionally on refund of the loan payment

Reasoning

The alleged redundancy-based exit package was not proved; pay slips showed only pension and NSSF contributions as exit benefits. The car was repossessed because the Claimant defaulted on the loan while on unpaid leave, so release was subject to refunding the employer's payment.

p. 7

Legal principles established

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  • In a constructive dismissal claim the employee must prove employer conduct amounting to a repudiatory breach that forced the resignation, that the conduct was intolerable, was not condoned, and resignation followed without delay
  • A mere request by an employer that an employee resign to receive an exit package does not amount to coercion

Court orders

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  1. 1.Declined to declare that the Respondent constructively dismissed the Claimant
  2. 2.Held that the Claimant is not entitled to compensation for unfair termination and salary in lieu of notice under Section 49 of the Employment Act
  3. 3.Granted the prayer for a certificate of service under Section 51 of the Employment Act
  4. 4.Allowed immediate release of motor vehicle KCJ 688R subject to the Claimant refunding to the Respondent the amount paid on his behalf when the car loan was recalled
  5. 5.Dismissed the claim for gratuity/send-off package
  6. 6.Dismissed the rest of the claims; no costs awarded to the Claimant as the suit succeeded only partially

Authorities

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Legislation

  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 51
  • Employment Act, 2007Sections 35 and 36
  • ELRC Procedure RulesRule 28(3)

Cases cited (4)

  • Joseph Aleper and Another v Lodwar Water and Sanitation Ltd
    (2015) eKLR
  • Maina Kagai Ligaga v Cocacola East and Central Africa Limited
    unreported
  • Kenneth Kimani Mburu and another v Muigai Holdings Limited
    (2014) eKLR
  • Coca Cola East and Central Africa
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 49 and 51 invoked); judgment delivered per ELRC Procedure Rules Rule 28(3) Covid-19 directions

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, "Kiprono v Unilever Tea Kenya Limited (Cause 23 of 2020) [2022] KEELRC 1301 (KLR)", Case Analysis (2022). Cause No 23 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1301/eng@2022-07-21

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