Kenya Women Microfinance Limited v Angore (Appeal E009 of 2023) [2023] KEELRC 2556 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employee who resigns during disciplinary proceedings cannot later claim constructive dismissal or notice pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the resignation amounted to constructive dismissal
The respondent voluntarily resigned while facing ongoing disciplinary proceedings over a faulty transaction; he was not pleaded nor entitled to a claim in constructive dismissal.
The respondent pleaded he was forced to resign after a faulty transaction, but constructive dismissal was never pleaded. The disciplinary process was ongoing and unconcluded. Where an employee aware of his rights is given the option to resign and be paid dues or face the disciplinary process, he has a choice. Having opted to resign, he cannot turn around to assert innocence given his own admission of a faulty transaction, particularly in the sensitive microfinance sector where loss of trust is a key trigger.
Whether the terminal dues awarded by the trial court were payable
Notice pay was not due since the respondent resigned; leave days and gratuity were already included in the appellant's final dues tabulation, which after deductions showed a negative balance.
Having resigned, the respondent was owed only his terminal dues. The appellant tabulated final salary, travel allowance, pay in lieu of leave and accrued gratuity totalling Kshs. 136,979.62, but after deductions for PAYE, client money and an outstanding loan the net payable was negative, meaning the respondent actually owed the appellant. The trial court's awards of notice pay, leave days and gratuity were therefore unjustified.
Entitlement to a certificate of service
A certificate of service is a statutory entitlement under section 51 of the Employment Act, 2007 and should issue at the end of employment.
The court noted that regardless of the manner of exit, the Employment Act requires an employer to issue a certificate of service at the end of employment. This is a statutory requirement that survives the finding that the appeal otherwise has merit.
Legal principles established
#- Constructive dismissal only accrues where the employer has placed the employee under intolerable working conditions forcing the resignation due to the employer's conduct; an employee facing ongoing disciplinary proceedings who chooses to resign cannot later claim constructive dismissal.
- An employee facing disciplinary proceedings who resigns retains the right to dispute the lawfulness or fairness of any termination under section 35(4) of the Employment Act.
- Issuance of a certificate of service at the end of employment is a statutory requirement under section 51 of the Employment Act.
Court orders
#- 1.The appeal is found with merit and is allowed
- 2.The judgment in Malindi CM ELRC No. 54 of 2019 is set aside in its entirety
- 3.Costs of the appeal awarded to the appellant
- On appeal from
- Magistrates' Court (CMELRC), Malindi
- Malindi CMELRC No. 54 of 2019
- Jurisdiction invoked
- First appeal from the trial magistrate's court in employment and labour relations matters
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.
- Mutiga v Proto Energy Limited (Cause E939 of 2023) [2025] KEELRC 1747 (KLR)[2025] KEELRC 1747 (KLR)13 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Kenya Women Microfinance Limited v Angore (Appeal E009 of 2023) [2023] KEELRC 2556 (KLR)", Case Analysis (2023). Not stated in the judgment (appeal from Malindi CMELRC No. 54 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2556/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.