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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 190 (KLR)

Ogesa v Fenesi Management Limited (Cause 749 of 2018) [2024] KEELRC 190 (KLR)

Employment and Labour Relations Court
12 February 2024
4,230 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, an accountant employed by the Respondent from June 2014 at a salary that rose to Kshs.100,000, sued for unfair termination, terminal dues and denial of a certificate of service. Her case was that on 19th December 2017, after returning from sick-off, she was summoned to a boardroom, accused of withholding company information and theft, subjected to hostile conduct by director Mr. Gitoho (including a phone thrown at her), and compelled on the spot to write a one-line resignation letter at reception in director Mr. Onyango's presence, who also confiscated her flash disk and had her ejected. The Respondent maintained the resignation was voluntary. The court framed two issues: whether the resignation was actuated by duress amounting to unfair termination, and entitlement to reliefs. Finding the Respondent's account not believable — no minutes of the board meeting, undisclosed agenda, failure to call Mr. Gitoho or Rev. Kwasi, and Mr. Onyango's admissions — the court held that the resignation was procured by coercion and constituted unfair termination under Section 45 of the Employment Act, with the burden under Section 47(5) discharged. All claimed terminal dues were awarded: 19 days' December 2017 salary and 16 outstanding leave days. Compensation was fixed at 3 months' gross salary (Kshs.300,000) rather than 12 months, applying Section 49(4) factors including the relatively short service and the Claimant's contribution to termination. Judgment was entered for the Claimant with costs.

Key legal issues

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01

Whether the resignation was voluntary or procured by duress

Holding

The resignation was coerced and amounted to unfair termination

Reasoning

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.

p. 8
02

Burden of proof under Section 47(5) Employment Act

Holding

Claimant discharged the burden

Reasoning

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.

p. 8
03

Quantum of compensation under Section 49

Holding

3 months' gross salary awarded instead of 12 months

Reasoning

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.

p. 9
04

Terminal dues: December salary and leave days

Holding

Both prayers awarded

Reasoning

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.

p. 9

Legal principles established

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  • A resignation procured by coercion or duress amounts to an unfair termination of employment under Section 45 of the Employment Act

Court orders

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  1. 1.Declaration that the Respondent violated the Claimant's rights and wrongfully terminated her services.
  2. 2.19 days salary for December 2017.
  3. 3.16 outstanding leave days.
  4. 4.Equivalent of 3 months' gross salary (Kshs.300,000).
  5. 5.Costs of this suit.
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011; Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.