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ELRCPartially AllowedCause No E245 of 2021· [2023] KEELRC 1251 (KLR)

Muikamba v Radio Africa Group Limited (Cause E245 of 2021) [2023] KEELRC 1251 (KLR)

Employment and Labour Relations Court
30 May 2023
NMNzioki Wa Makau
8,649 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused a radio presenter's constructive dismissal claim but ordered her employer to refund deducted money, pay unpaid fees, and issue her certificate of service.

What this practically means

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Executive summary

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The Claimant, a radio presenter and content creator with the Respondent, sued alleging constructive dismissal. She claimed that the Director of Programs, Mr. Pete Sinclair, subjected her to harassment and a hostile working environment from 2018, that the Respondent failed to protect her, and that she was forced to resign on 17th September 2020. She sought declarations of constructive dismissal and estoppel, aggravated and general damages, payment for the unexpired contract, twelve months' pay for unfair termination, and notice pay. The Respondent denied the claims, contending the Claimant never documented complaints, acquiesced by renewing her contract, that the one reported incident was promptly addressed with a warning and an apology, and that she declined an offer of an identical fresh contract, leaving for greener pastures. It also maintained the Kshs. 50,000/- advanced for her medical expenses was a recoverable loan. The Court found no nexus between the alleged hostile environment and the resignation, holding that the Claimant left voluntarily and failed to establish constructive dismissal. It condemned the Respondent's conduct regarding Mr. Sinclair as racism and misogyny but held this did not establish the claim. The Kshs. 50,000/- was held not proved to be a loan, its recovery being unconscionable absent documentation or communication. The Claimant was awarded her certificate of service under section 51 of the Employment Act, Kshs. 6,000/- for unpaid voice over services, a refund of any deductions on the Kshs. 50,000/-, her employment records, costs limited to the lower scale, and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

No. The Claimant did not raise the alleged harassment over two years, reported only one incident on which the Respondent acted, and left voluntarily for other employment despite an offer of enhanced terms.

Reasoning

The Court found the Claimant never documented complaints in appraisals or at contract renewal, and only one incident was formally reported, which the Respondent addressed promptly resulting in a warning and apology. Her retraction and subsequent rejection of a fresh contract showed acquiescence and voluntary departure. Without a causal link between the alleged hostile environment and the resignation, constructive dismissal failed.

p. 13
02

Whether the Kshs. 50,000/- was a loan

Holding

No. No documents or communication showed the sum was a loan; recovering it as such was unconscionable and the Claimant is entitled to a refund of any deductions.

Reasoning

The Respondent produced no loan agreement or application, and no communication at disbursement indicated a loan. The recovery only arose after resignation. Sections 10(6) and (7) of the Employment Act place the record-keeping burden on the employer. The Court found it unconscionable to recover a sum the Claimant believed was an ex gratia payment.

p. 14
03

Whether the Claimant was entitled to the certificate of service, voice-over fees and employment records

Holding

Yes. The certificate of service under section 51, Kshs. 6,000/- for unpaid voice over services (unopposed), and her employment records were awarded.

Reasoning

The Respondent invited but never delivered the certificate; it should have been mailed. The voice-over claim was unopposed by proof or payment. The claim for employment records was not opposed, and the employer has a duty to keep and avail employment records.

p. 13

Legal principles established

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  • Where an employer advances a sum without documentation or communication that it is a loan, treating it as a recoverable loan is unconscionable
  • An employee alleging constructive dismissal must draw a nexus between the employer's conduct and the resignation
  • An employer who refuses to release a certificate of service cannot insist the former employee collect it in person

Court orders

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  1. 1.Issuance of the Claimant's Certificate of Service in accordance with section 51 of the Employment Act
  2. 2.Payment of Kshs. 6,000/- for voice over services
  3. 3.Refund of any sum deducted in respect of the Kshs. 50,000/- advanced to the Claimant
  4. 4.Release of employment records held by the Respondent in respect of the Claimant including appraisals, contracts of service and any complaints/allegations made against her or by her
  5. 5.Costs of the suit limited to the lower scale
  6. 6.Interest on the sums in (ii) and (iii) at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsections 10(6), 10(7)
  • Employment Actsections 49(1)(a), 49(1)(c)
  • Employment Actsection 51
  • Employment Act, 2007section 49
  • Evidence Actsection 107(1)
  • Human Resource Management Professional Act, 2012section 29(1)

Cases cited (12)

  • Agatha Bugosi Said v Vegpro Kenya Limited
    [2014] eKLR
  • Coca Cola East Africa & Central Africa v Maria Kagai Ligaga
    [2015] eKLR
  • Kenneth Kimani Mburu & Another v Kibe Mungai Holdings Limited
    [2014] eKLR
  • M/S Pathologist Lancet Kenya Limited v Christamarianne Mission Hospital
    [2021] eKLR
  • Serah Njeri Mwobi v John Kimani Njoroge
    [2013] eKLR
  • Western Excavating (ECC) Ltd. v Sharp
    [1978] ICR 222; [1978] QB 761
  • Samira Schwarz v Farzana Nauranga & 2 others
    [2021] eKLR
  • Jackline Ng'ongo Nyadeje v Board of Trustees, KCA University
    [2019] eKLR
  • Joyce Sang v Sumaria Industries Limited
    [2019] eKLR
  • Edwin Beiti Kipchumba v National Bank of Kenya Limited
    [2018] eKLR
  • 748 Air Services Limited v Theuri Munyi
    [2017] eKLR
  • Mary Mutanu Mwendwa v Ayuda Ninos De Africa-Kenya (Anidan K)
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (refers to sections 10, 49, 51 of the Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muikamba v Radio Africa Group Limited (Cause E245 of 2021) [2023] KEELRC 1251 (KLR)", Case Analysis (2023). Cause No E245 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1251/eng@2023-05-30

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