Ogesa v Fenesi Management Limited (Cause 749 of 2018) [2024] KEELRC 190 (KLR)
The bottom line
#A Kenyan court ruled that pressuring an employee to resign on the spot counts as unfair termination, entitling her to compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the resignation was voluntary or procured by duress
The resignation was coerced and amounted to unfair termination
The board's undisclosed agenda, the one-line handwritten letter written at reception under a director's supervision, denial of time to draft it freely, escorting the Claimant out, and police intervention on the same day established coercion on a balance of probabilities. The Respondent's failure to call Mr. Gitoho or Rev. Kwasi, and Mr. Onyango's non-denial of Mr. Gitoho's conduct, weakened its case.
Burden of proof under Section 47(5) Employment Act
Claimant discharged the burden
The court held the Claimant proved unfair termination on a balance of probabilities, adopting the test in Nicholus Kipkemoi Korir v Hatari Security Guards Ltd, and found the Respondent adduced no credible evidence of voluntary resignation.
Quantum of compensation under Section 49
3 months' gross salary awarded instead of 12 months
Applying Section 49(4) factors: about 3 years 5.5 months' service (relatively short), no misconduct record, no wish expressed to remain employed, and the Claimant contributed to the termination.
Terminal dues: December salary and leave days
Both prayers awarded
The Respondent adduced no evidence of payment for December 2017 days worked and tendered no evidence contradicting the 16 outstanding leave days, having confirmed it paid nothing after resignation.
Legal principles established
#- A resignation procured by coercion or duress amounts to an unfair termination of employment under Section 45 of the Employment Act
Court orders
#- 1.Declaration that the Respondent violated the Claimant's rights and wrongfully terminated her services.
- 2.19 days salary for December 2017.
- 3.16 outstanding leave days.
- 4.Equivalent of 3 months' gross salary (Kshs.300,000).
- 5.Costs of this suit.
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogesa v Fenesi Management Limited (Cause 749 of 2018) [2024] KEELRC 190 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/190/eng@2024-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.