Kaveke v Capsule Limited t/a Flare (Cause E042 of 2023) [2024] KEELRC 2555 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether constructive dismissal could be determined
It could not; constructive dismissal was never pleaded and arises only in submissions.
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.
Whether the Claimant proved her claim for unpaid bonus
No; the bonus claim as special damages was not strictly proved.
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.
Whether the Claimant was entitled to pension allowance
No; the pension proposal never became a contractual term.
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.
Legal principles established
#- 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
#- 1.The Claim is dismissed in its entirety
- 2.Each party bears its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.