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ELRCDismissedCause No E042 of 2023· [2024] KEELRC 2555 (KLR)

Kaveke v Capsule Limited t/a Flare (Cause E042 of 2023) [2024] KEELRC 2555 (KLR)

Employment and Labour Relations Court
18 October 2024
3,464 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Business Development and Sales Executive Lead under a contract dated 25th June 2021, resigned on 17th November 2022 and sued for Kshs 6,160,331 comprising unpaid bonus of Kshs 5,522,131 and pension allowance of Kshs 618,200, plus general damages, costs and interest. She claimed entitlement to a 15% bonus on sales above 8 times her monthly gross salary and a pension allowance of Kshs 56,200 per month. The Respondent countered that she never met her minimum quarterly sales targets, that grants are not sales and cannot found bonus entitlement, that it remitted her NSSF deductions, and that a Deed of Variation offering enhanced remuneration was never signed by her. Stella Rutto J framed a single issue: whether the Claimant was entitled to the reliefs sought. First, the court declined to determine constructive dismissal because it was raised for the first time in submissions and never pleaded, applying Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi on submissions not constituting evidence. On the bonus claim, the court held that as a claim for special damages it required strict proof; the Claimant exhibited contracts but gave no breakdown of bonus amounts or contract values, so she had thrown figures at the court and failed to prove entitlement. On pension, the proposal arose only in negotiations over an unexecuted Deed of Variation and never became a contractual term capable of enforcement. The claim was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Whether constructive dismissal could be determined

Holding

It could not; constructive dismissal was never pleaded and arises only in submissions.

Reasoning

The Claimant raised constructive dismissal for the first time in submissions, relying on authorities such as Wester Excavating. The court held that constructive dismissal must be specifically pleaded with particulars in the Statement of Claim, and that submissions are not evidence. Having failed to plead it or seek the reliefs flowing from it, the Claimant could not have the issue determined. The court followed Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi on submissions not constituting evidence.

p. 5
02

Whether the Claimant proved her claim for unpaid bonus

Holding

No; the bonus claim as special damages was not strictly proved.

Reasoning

Although the Claimant exhibited contracts with various clients, she provided no breakdown of the bonus claimed per contract, contract values, or sales achieved against each. The court applied Capital Fish Kenya Ltd v Kenya Power on strict proof of special damages, holding she had thrown figures at the court without credible evidence, leaving the court unable to ascertain her entitlement.

p. 6
03

Whether the Claimant was entitled to pension allowance

Holding

No; the pension proposal never became a contractual term.

Reasoning

The contract merely stated that a pension plan would be reviewed post-probation. The 10% pension consideration arose only in negotiations towards a Deed of Variation, which the Claimant rejected and never signed. An unexecuted proposal is not a contractual term capable of enforcement, so the pension claim of Kshs 618,200 could not be sustained.

p. 7

Legal principles established

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  • A claim for special damages must be both pleaded and strictly proved with evidence; a party cannot merely throw figures at the court.
  • Submissions do not constitute evidence and cannot take the place of pleaded facts and proof.
  • Constructive dismissal must be specifically pleaded with particulars, not raised for the first time in submissions.
  • Terms negotiated but never reduced into a signed agreement are not enforceable contractual terms.

Court orders

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  1. 1.The Claim is dismissed in its entirety
  2. 2.Each party bears its own costs

Authorities

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Legislation

  • Evidence ActSection 97
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (11)

  • Wester Excavating (ECC) Ltd vs Sharp
    (1978) ICR 221
  • Maria Kagai Ligaga vs Coca Cola East and Central Africa Limited
    Cause Number 611 (N) of 2009
  • Benuel Mariera vs Awand Enterprises Limited Mbsa
    Cause No. 191 of 2013
  • Hadley vs Baxendale
    (1854) 9 Exh 341
  • National Bank of Kenya Limited vs Pipeplastic Samkolit (K) Ltd and another
    [2002] 2 EA 503 (CAK)
  • Kukal Properties Development Ltd v Tafazzal H. Maloo & 3 others
    [1993] eKLR
  • BID Insurance Brokers Limited v British United Provident Fund
    [2016] eKLR
  • Guardia Coach Ltd & another v Kiptoo
    (Civil Appeal 34 of 2020) [2022] KEHC 12397 (KLR)
  • Rem Ogodo Ogana v Kenya Sugar Board
    [2016] eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Capital Fish Kenya Limited v The Kenya Power and Lighting Company Limited
    [2016] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (claim for unpaid bonus and pension allowance arising from a contract of employment dated 25th June 2021)

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, "Kaveke v Capsule Limited t/a Flare (Cause E042 of 2023) [2024] KEELRC 2555 (KLR)", Case Analysis (2024). Cause No E042 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2555/eng@2024-10-18

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