Cherugut v Kenya Meteorological Society (Cause 1067 of 2017) [2023] KEELRC 2955 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Yes - on a preponderance of probabilities the Claimant resigned in response to constant harassment and insults constituting repudiatory conduct by the Respondent
The Claimant resigned by letter dated 13th March 2017 citing constant harassment and insults by Ms Stella Aura, including demeaning remarks such as 'Mjinga'. The person accused did not testify to contradict this testimony. Applying the contractual approach test in Coca Cola v Ligaga, the conduct amounted to a repudiatory breach and a causal link to the resignation was established.
Whether the burden of proof is lowered in an undefended suit
No - the Claimant must still establish the employment relationship and all facts of the claim to the requisite standard
The court restated the principles governing undefended suits: pleadings are not evidence, and although the Respondent adduced no evidence, the Claimant remained obliged to prove her case, including the employment relationship, on a preponderance of probabilities, following Onyango J. in Mutemi and Abuodha J. in Korir.
Quantum of compensation for constructive dismissal
Equivalent of 3 months' salary awarded under Section 49(1)(c) of the Employment Act
In exercising discretion under Section 49(1)(c), the court considered the relatively short duration of employment (about 2 years 2 months), that the Claimant did not express a wish to continue in employment, and the absence of recorded misconduct or disciplinary proceedings, concluding 3 months' salary was fair.
Legal principles established
#- In an undefended suit the pleadings of the absent party remain unsubstantiated averments, but the Claimant must still prove the case to the requisite standard
- Constructive dismissal is tested by the contractual approach: the employer's conduct must amount to a repudiatory breach of a fundamental term and there must be a causal link to the resignation
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent for unpaid salary for the days worked in March 2017
- 2.Equivalent of 3 months' salary as compensation for constructive dismissal
- 3.Costs of the suit to the Claimant
- 4.Interest at court rate from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment relationship; reliefs under Sections 35(5), 40(1)(g) and 49(1)(c))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherugut v Kenya Meteorological Society (Cause 1067 of 2017) [2023] KEELRC 2955 (KLR)", Case Analysis (2023). Cause No 1067 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2955/eng@2023-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.