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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 809 (KLR)

Ogolah v Postal Corporation of Kenya (Cause 1186 of 2016) [2023] KEELRC 809 (KLR)

Employment and Labour Relations Court
27 March 2023
MMM. Mbarũ
1,800 words in judgment
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The bottom line

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A Kenyan court dismissed a former Postal Corporation employee's claims for higher-grade pay and compensation for a 'frustrated' resignation, but ordered issuance of his certificate of service.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a Postal Officer on September 4, 2012, was deployed to the Mails Department and performed duties as acting Business Analyst. He resigned on February 17, 2016 citing frustrations, failure to confirm him in the acting position, non-payment of acting allowances and non-review of his salary, and sought a declaration that his resignation arose from frustration with 12 months' compensation of Kshs 1,061,880, unpaid salary arrears of Kshs 267,826.39, a certificate of service and costs. The respondent maintained the claimant's substantive position remained Postal Officer UN10, that his acting role ended upon appointment of a substantive Business Analyst on October 19, 2015, that acting allowances were assessed and paid on his substantive grade (including an amicable payment of Kshs 74,854.16 with an overpayment recovered), and that his resignation was voluntary. The respondent called no witness; only the claimant filed submissions. The court, per M. Mbarũ J, held that under Section 10 of the Employment Act the claimant was bound by his written contract absent a written review, CBA variation or policy conferring benefits; that his acting role overlapped only briefly with the substantive appointment; that a claim of forced resignation requires pleaded and proved particulars of repudiation, which were not demonstrated; and that the claim for higher-grade salary was unsupported. The only relief granted was the certificate of service under Section 51. The claim was otherwise dismissed with each party bearing its own costs.

Key legal issues

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01

Entitlement to salary at higher grade while acting

Holding

The claimant was not entitled to be paid at MG7/MG6; his substantive position remained Postal Officer UN10 and acting allowances were assessed and paid on that basis

Reasoning

Under Section 10 of the Employment Act, the written contract binds the employee absent a written review, CBA variation or policy conferring benefits. The acting role lasted only from October 20, 2015 until the substantive holder was appointed, and allowances were assessed and paid accordingly. The claim that the claimant was a finalist in the interview was unsupported by evidence.

p. 4
02

Resignation arising from frustration

Holding

The claim for damages arising from frustration of the contract failed; no repudiation was demonstrated

Reasoning

The court distinguished between intolerable working conditions forcing resignation and contractual frustration. A claimant must plead and prove particulars demonstrating conduct leading to repudiation of the employment contract. The claimant's own resignation letter acknowledged he had been in an acting role without confirmation, and no such particulars were demonstrated.

p. 4
03

Certificate of service

Holding

Granted; mandatory under Section 51 of the Employment Act, 2007

Reasoning

The certificate of service is a statutory entitlement at the end of employment regardless of the outcome of the other heads of claim. The respondent did not issue one, and the court ordered it to issue.

p. 4
04

Effect of respondent not calling a witness

Holding

The claim was not undefended merely because the respondent called no witness

Reasoning

The respondent filed a response and its pleaded case stood on the record. Despite the respondent not calling any witness, the court found no merit in the claim on the material before it.

p. 4

Legal principles established

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  • An employee is bound by the terms of a written contract of employment unless the terms are reviewed in writing, varied by a CBA, or an employment policy confers the benefits claimed
  • Where an employee claims constructive/forced resignation due to intolerable working conditions, the claimant must plead and prove particulars leading to repudiation of the contract; 'frustration' is not the correct concept
  • A certificate of service must issue at the end of employment under Section 51 of the Employment Act, 2007

Court orders

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  1. 1.The claim is dismissed
  2. 2.The respondent shall issue the claimant with a Certificate of Service as required under Section 51 of the Employment Act, 2007
  3. 3.Each party shall bear own costs
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (ELRC first-instance claim)

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, "Ogolah v Postal Corporation of Kenya (Cause 1186 of 2016) [2023] KEELRC 809 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/809/eng@2023-03-27

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