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ELRCPartially AllowedNot specified in the judgment (memorandum of claim dated 24th October, 2023)· [2024] KEELRC 2796 (KLR)

Kimata v China Young Tai Engineering Company Limited (Employment and Labour Relations Cause E054 of 2023) [2024] KEELRC 2796 (KLR)

Employment and Labour Relations Court
14 November 2024
4,645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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An employee who resigns in Kenya can still win service pay, but must prove complaints to claim constructive dismissal.

What this practically means

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Executive summary

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The claimant, engaged orally by the respondent in 2006 as an electrical technician earning Kshs 100,000 monthly, resigned on 10th January 2023 alleging hostile and abusive treatment by the respondent's director, and sued for constructive dismissal, compensation, leave pay, retirement benefits, unpaid service pay, overtime, unpaid salary, general damages, costs and a certificate of service. The respondent admitted the engagement but contended the claimant was an overseer/consultant on flexible hours who absconded and resigned without notice, and counterclaimed for one month's notice pay. The respondent's submissions were not availed to the court. The court, per Wasilwa J, held that under section 10(7) of the Employment Act, the failure to issue a written contract meant the claimant's stated terms prevailed, establishing full-time employment. However, the constructive dismissal claim failed: the claimant admitted resigning and produced no evidence that he had raised complaints of hostility which went unaddressed. The abscondment allegation equally failed since the respondent admitted resignation. The leave claim was untenable and time barred; the overtime claim failed for want of time sheets. The court awarded terminal dues of 15 days' salary per year for 17 years, totalling Kshs 850,000 less statutory deductions, with costs and interest at court rates from the date of judgment. The counterclaim was not expressly determined.

Key legal issues

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01

Status of the claimant - employee or independent contractor

Holding

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

Reasoning

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.

p. 8
02

Constructive dismissal

Holding

The claim was not established. The claimant resigned voluntarily and failed to prove he complained of the alleged hostile environment and was ignored

Reasoning

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.

p. 8
03

Abscondment and the counterclaim for notice pay

Holding

The respondent's allegation of abscondment failed because the respondent admitted the claimant resigned without notice

Reasoning

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.

p. 8
04

Terminal dues of a resigning employee

Holding

The claimant was awarded service pay of 15 days' salary for each of the 17 years worked, totalling Kshs 850,000

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 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. 2.The respondent to pay the costs of the suit
  3. 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

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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, "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.