Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause (Nairobi), filed 9th October 2017· [2023] KEELRC 3048 (KLR)

Okoth v Micos Dry Cleaners (Cause 2018 of 2017) [2023] KEELRC 3048 (KLR)

Employment and Labour Relations Court
29 November 2023
JGJacob Gakeri
3,109 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled the employee resigned voluntarily but still won her unpaid salary and house allowance because her employer kept no payment records.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent from 1st July 2007 as a Receptionist/Sorter, sued for terminal dues alleging she was forced to resign in October/November 2015 on medical grounds and claiming October 2015 salary, service pay, salary in lieu of leave, overtime, house allowance and salary in lieu of unfair termination, totalling Kshs.630,071.00. The Respondent admitted the employment relationship but alleged the Claimant committed theft, fraud and dishonesty, absconded duty and was dismissed, demanding payment of Kshs.22,800/= allegedly lost while in her custody. The court framed two issues: whether the Claimant resigned or was unfairly terminated, and entitlement to reliefs. Relying on authority that resignation is a unilateral act terminating employment with immediate effect without employer acceptance, and noting that the Respondent issued no notice to show cause and its own witness testified the services were never terminated, the court found the Claimant resigned voluntarily and the alleged termination was unsupported by evidence. On reliefs, the court awarded October 2015 salary of Kshs.12,880.00 as the Respondent had no proof of payment, and house allowance at 15% for 3 years (Kshs.69,552.00) because the employer failed to prove the salary was consolidated under Section 10(7) of the Employment Act. Service pay was denied under Section 35(6)(d) as the Claimant was an NSSF member; leave and overtime claims were dismissed for want of proof; and salary in lieu of termination was dismissed as not envisioned by the Act. Judgment of Kshs.82,432/= was entered for the Claimant with costs and interest at court rates. Delivered virtually at Nairobi on 29th November 2023 by Dr. Jacob Gakeri, Judge.

Key legal issues

#
01

Whether the Claimant resigned voluntarily or was unfairly terminated

Holding

The Claimant resigned voluntarily; the alleged termination was unsupported by evidence.

Reasoning

The Claimant tendered a handwritten resignation letter dated 22nd November 2015, received 27th November 2015, which she admitted authoring. No evidence of coercion was adduced, and constructive dismissal was never pleaded. The Respondent's own witness confirmed no notice to show cause was issued and that the Claimant's services were never terminated as she deserted the workplace. Disciplinary action taken after resignation has no effect as the employment relationship no longer exists.

p. 6
02

Entitlement to October 2015 salary

Holding

Awarded Kshs.12,880.00 as Respondent had no documentary proof of payment.

Reasoning

The Respondent's witness testified that all dues were paid but admitted having no documentary evidence of payment of the October 2015 salary and none was availed. The Claimant's uncontroverted testimony therefore stood, and the prayer succeeded.

p. 6
03

Entitlement to house allowance

Holding

Awarded 15% of salary for 3 years (Kshs.69,552.00) because the Respondent failed to prove the salary was consolidated.

Reasoning

The letter of offer quoted a monthly salary without indicating whether it was basic or gross; no payslip under Section 20 of the Employment Act was produced. Since the employer failed to establish consolidation, Section 10(7) placed the burden on the employer, and housing being a statutory right, the claim succeeded, limited to three years.

p. 7

Legal principles established

#
  • Resignation of an employee terminates the employment relationship with immediate effect and does not require acceptance by the employer
  • An employer pleading desertion must demonstrate efforts to contact the employee and a notice to show cause is necessary before termination
  • Where it is not shown that a salary was consolidated, the burden is on the employer to prove consolidation under Section 10(7) of the Employment Act

Court orders

#
  1. 1.Judgment entered for the Claimant against the Respondent for October 2015 salary of Kshs.12,880.00
  2. 2.House allowance for 3 years at 15% of Kshs.12,880.00, Kshs.69,552.00 (total award Kshs.82,432/=)
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at court rates from the date of judgment till payment in full

Authorities

#

Legislation

  • Employment Act, 2007Section 31
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 35(6)(d)
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 20
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (12)

  • Daniel Njuguna Muchiri V Sagar Bakery Ltd
  • James Ndambuki Muoka V Sat Joiners Ltd
  • Rogoli Ole Manadiegi V General Cargo Services
  • Wyclifie Juma Ilukol V Board of Management Father Okodui Secondary School
    (2022) eKLR
  • Matsesho V Newton
    (2022)
  • Edwin Beiti Kipchumba V National Bank of Kenya Ltd
    (2015) eKLR
  • Kennedy Obala Oaga V Kenya Ports Authority
    (2018) eKLR
  • Herbert Wafula Waswa V Kenya Wildlife Services
    (2020) eKLR
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    (2018) eKLR
  • Simon Mbithi Mbane V Inter Security Services Ltd
    (2018) eKLR
  • Joseph Nzioka V Smart Coatings Ltd
    (2017) eKLR
  • Judith Atieno Owuor V Sameer Agriculture & Livestock Ltd
    (2020) eLKR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Okoth v Micos Dry Cleaners (Cause 2018 of 2017) [2023] KEELRC 3048 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi), filed 9th October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3048/eng@2023-11-29

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