Nyaga v Leaders Academy Limited (Cause 238 of 2016) [2022] KEELRC 1595 (KLR)
The bottom line
#An employer who ignores a resignation letter and keeps paying the employee cannot later fire them without notice, reason, or a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the resignation letter dated May 9, 2015 terminated the contract of employment
The notice did not terminate the contract; the Respondent failed to respond, and by its conduct in allowing the Claimant to continue working and paying wages, it affirmed the continuation of the employment relationship and is estopped from acting contrary to that representation.
The Court found that the Claimant served a proper one-month notice in line with clause 5 of the appointment letter, but the Respondent neither accepted nor rejected it. After effluxion of the notice period the Claimant continued working and was paid. Relying on High Trees and section 35(3) and (4) of the Employment Act as explained in James Chutha Gathere, the Court held the employer bore the duty to respond with certainty, and its passivity created a representation on which the Claimant relied.
Whether the termination on December 12, 2015 was lawful
The termination was unlawful and unfair for want of notice, valid reason and a disciplinary hearing, contrary to sections 35, 41, 43, 44 and 45 of the Employment Act, 2007.
RW1 confirmed in cross-examination that no notice of termination or warning was issued and that the Claimant was not taken through a disciplinary hearing. Applying the substantive and procedural fairness test in section 45(2) and the authorities of Walter Ogal Anuro, Naima Khamis and Pius Machafu Isindu, the Court found the termination failed both limbs. The prepared certificate of service lent credence to the Claimant's evidence that she handed over.
Entitlement to reliefs
The Claimant was awarded Sacco dues, two months' notice pay, two-thirds of the gratuity, three months' salary as compensation and a certificate of service, with costs and interest.
Sacco dues were admitted. The notice pay flowed from clause 5 of the appointment letter which the Respondent did not contest. Gratuity was due under clause 3 after over three years of service, with the Court awarding two-thirds since the Claimant had received a third. Compensation was assessed at three months' gross salary under section 49 considering length of service and the Claimant's own resignation notice. A certificate of service was due under section 51(1).
Legal principles established
#- A termination of employment must be both substantively justifiable and procedurally fair to pass muster under Section 45 of the Employment Act
- An employer who receives an employee's notice of termination must acknowledge it and either accept or reject the proposed course of action; passivity coupled with continued payment estops the employer from denying continuation of the contract
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair/unlawful
- 2.Sacco dues Kshs.5,400/- awarded
- 3.Two months' notice pay Kshs.39,930/- awarded
- 4.Two thirds of the gratuity payment awarded
- 5.Three months' salary as compensation for unlawful loss of employment, Kshs.59,895/- awarded
- 6.Certificate of service to be issued
- 7.Costs and interest at Court rate from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaga v Leaders Academy Limited (Cause 238 of 2016) [2022] KEELRC 1595 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1595/eng@2022-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.