Kimata v China Young Tai Engineering Company Limited (Employment and Labour Relations Cause E054 of 2023) [2024] KEELRC 2796 (KLR)
The bottom line
#An employee who resigns in Kenya can still win service pay, but must prove complaints to claim constructive dismissal.
What this practically means
#Executive summary
#Key legal issues
#Status of the claimant - employee or independent contractor
The claimant was a full-time employee on Kshs 100,000 monthly salary and Kshs 100,000 yearly bonus; because the employer failed to issue a written contract, the terms as stated by the claimant are adopted
Section 10(7) of the Employment Act places the burden of proving or disproving alleged terms of employment on the employer where no written contract is produced. The respondent admitted employing the claimant orally from 2006 and paying a monthly salary, and its own witness conceded he served full time. The court therefore adopted the claimant's version of the terms.
Constructive dismissal
The claim was not established. The claimant resigned voluntarily and failed to prove he complained of the alleged hostile environment and was ignored
An employee alleging constructive dismissal must demonstrate that the employer's conduct rendered employment intolerable and that complaints were raised and unaddressed. The claimant admitted he never reported the alleged insults and produced no evidence of unattended complaints. He therefore resigned; constructive dismissal could not lie.
Abscondment and the counterclaim for notice pay
The respondent's allegation of abscondment failed because the respondent admitted the claimant resigned without notice
The respondent pleaded desertion/abscondment but simultaneously admitted the claimant resigned. Having admitted resignation, the abscondment allegation could not stand. The judgment does not expressly determine the counterclaim for one month's notice pay.
Terminal dues of a resigning employee
The claimant was awarded service pay of 15 days' salary for each of the 17 years worked, totalling Kshs 850,000
Although the claimant was not terminated, the court held he remained entitled to terminal dues under section 35(5) of the Employment Act, quantified at 15/30 x 17 x 100,000 = Kshs 850,000, less statutory deductions.
Legal principles established
#- Where an employer fails to issue a written contract of service, the burden of proving or disproving the alleged terms of employment rests on the employer
- An employee alleging constructive dismissal bears the burden of proving that he raised complaints of a hostile environment with the employer and they went unaddressed
- An employee who resigns is still entitled to terminal dues as provided by section 35(5) of the Employment Act, assessed at 15 days' salary per year worked
Court orders
#- 1.The respondent to pay the claimant terminal dues (service pay) of Kshs 850,000 less statutory deductions, computed at 15 days' salary for each of the 17 years worked
- 2.The respondent to pay the costs of the suit
- 3.Interest on the awarded sum at court rates with effect from the date of the judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimata v China Young Tai Engineering Company Limited (Employment and Labour Relations Cause E054 of 2023) [2024] KEELRC 2796 (KLR)", Case Analysis (2024). Not specified in the judgment (memorandum of claim dated 24th October, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2796/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.