Gitonga v Spire Bank Limited (Cause E651 of 2021) [2022] KEELRC 1602 (KLR)
The bottom line
#A Kenyan court ruled that an employee who resigns without notice must pay the notice shortfall unless the employer's waiver of that notice was explicitly stated in writing.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC could entertain a striking-out application under the Civil Procedure Rules
The application had no legal basis; the ELRC (Procedure) Rules 2016 do not contemplate the application of the Civil Procedure Rules and do not provide for striking out pleadings except under the Court's inherent powers.
The Court relied on Patrick Kamunya Wambui v Wananchi Sacco Society Ltd (2018) eKLR, holding that the ELRC is a specialised court under Article 162(2) with its own rules which neither provide for nor contemplate the Civil Procedure Rules. Striking out pleadings is not provided for in the rules and can only occur on the Court's own motion under inherent powers. The Claimant's reliance on the wrong procedural rules rendered the application misplaced.
Whether the Respondent waived the three months' notice and was thereby liable to pay the Claimant salary in lieu of notice
No waiver was proved. Section 36 of the Employment Act places the obligation to give notice or pay in lieu on the party terminating; acceptance of the Claimant's immediate release did not amount to an express waiver by the Respondent.
The employment contract required three months' notice from either party. The Claimant resigned with immediate effect and never gave notice. Under Sections 36 and 38 of the Employment Act, only an express employer waiver shifts the liability to pay in lieu onto the employer. Following Kenya National Library Services Board v Beatrice N. Ayoti and Carol Adhiambo Olela v Asterisk Limited, waiver must be express, and an employee leaving without notice is bound to pay for the shortfall. No document showing express waiver was adduced.
Whether summary judgment was merited given the Respondent's response
The Respondent raised bona fide triable issues; the claim had to proceed to full hearing.
Citing Barclays Bank International Limited and Keninida Assurance Co. Ltd as cited in Postal Corporation of Kenya v Aineah Likumba Asienya, the Court held that summary judgment is reserved for the clearest cases and where triable issues exist the Court must allow a defence unconditionally. The Respondent's response dated 1st October 2020 raised bona fide issues, and Article 50 of the Constitution required a fair hearing of all parties before resolution of the dispute.
Legal principles established
#- A valid waiver of the notice period must be express and not implied; absent an express waiver, an employee who resigns without notice must pay the employer for the notice shortfall
- Summary judgment is only available in the clearest of cases; where a respondent shows a bona fide triable issue, leave to defend must be given
Court orders
#- 1.The Claimant's application dated 27th January 2022 is disallowed, including the prayers to enter judgment for Kshs 5,475,000/- and to strike out the Respondent's response dated 1st October 2020
- 2.Costs to be in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court established under Article 162(2) of the Constitution, governed by the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga v Spire Bank Limited (Cause E651 of 2021) [2022] KEELRC 1602 (KLR)", Case Analysis (2022). Cause No E651 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1602/eng@2022-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.