Omukatia v Kenvic School (Petition 3 of 2021) [2023] KEELRC 753 (KLR)
The bottom line
#A Kenyan court dismissed a former school driver's claims, ruling that Covid-19 school closures do not amount to constructive dismissal and every money claim must be backed by evidence.
What this practically means
#Executive summary
#Key legal issues
#Limitation under section 90 of the Employment Act
Suit filed on 23rd November 2021 was not time barred, whether under the three-year period or the twelve-month continuing-injury provision.
The Petitioner stopped working when schools closed in March 2020 and treated his constructive dismissal as effective on his resignation of 1st March 2021. Filing on 23rd November 2021 fell within both the three-year period and twelve months from cessation, so the Respondent's limitation objection failed.
Constructive dismissal
Not proved; the Respondent merely complied with a Government directive to close schools, and the workplace was not shown to be intolerable.
Applying the Coca Cola Ligaga principles, the court found the Petitioner knew the reason he was sent home (Covid-19 closure directive), his resignation letter was an afterthought, and no repudiatory breach by the Respondent was demonstrated. The employer was not at fault in complying with the Ministry of Education directive.
Alleged constitutional violations (Articles 2, 3(1), 10, 19, 20, 21, 22, 23, 24, 27, 35, 41, 259)
No constitutional violation found; the dispute was essentially a contractual/employment benefits matter that should have been brought as an ordinary claim.
All substantive remedies sought were employment benefits under the Employment Act. Citing foreign and local authority, the court held it will not entertain constitutional questions where a remedy exists under other legislation, but followed Odunga J in declining to strike out the petition, instead treating the prayers as if made in a claim.
Monetary claims (house allowance, rest days, leave, NSSF, service pay)
All failed for want of proof or as a matter of law; salary exceeded minimum wage inclusive of house allowance, and NSSF membership bars service pay.
The Petitioner gave no breakdown or evidentiary basis for the sums claimed and did not rebut the Respondent's account of consolidated salary and leave taken during school holidays. NSSF remittance disputes lie with the Fund, and section 35(6) and (7) of the Employment Act disentitle NSSF members from service pay.
Legal principles established
#- Claims under the Employment Act must be brought within three years, or within twelve months of cessation of a continuing injury, under section 90 of the Employment Act.
- Constructive dismissal requires an employer breach that is repudiatory, resignation in response to it, and no delay in resigning.
- Where remedies are available under ordinary employment legislation, the court will decline to determine a constitutional question.
- A procedural lapse in bringing an employment claim by petition rather than an ordinary memorandum of claim does not warrant striking out; the court may determine the prayers as if brought as a claim.
- An employee who is a member of NSSF is not eligible for service pay under section 35(6) of the Employment Act.
Court orders
#- 1.Petition dismissed with costs
- 2.Respondent directed to issue the Petitioner with a certificate of service in accordance with section 51 of the Employment Act
- Jurisdiction invoked
- Articles 22, 23 and 165 of the Constitution of Kenya 2010 (petition brought under Article 22(1))
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.
- Omuyonga v Fast Security Services Limited (Employment and Labour Relations Appeal E137 of 2023) [2025] KEELRC 1513 (KLR)[2025] KEELRC 1513 (KLR)23 May 2025
Cite this brief
#Cite this brief
Caselaw, "Omukatia v Kenvic School (Petition 3 of 2021) [2023] KEELRC 753 (KLR)", Case Analysis (2023). Petition dated 30th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/753/eng@2023-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.