Sitati v SGA Security Limited (Employment and Labour Relations Appeal E218 of 2022) [2024] KEELRC 2819 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Arising from the grounds of appeal the main issue of determination is whether the appeal is merited.
- 2.Whether the appellant resigned voluntarily or was constructively dismissed.
- 3.Whether the appellant was entitled to compensation under Section 49 of the Employment Act, overtime pay, unpaid leave, house allowance, public holiday pay and unpaid June 2019/2020 days.
Key legal issues
#Whether the appellant's letter of 22nd June 2020 constituted a voluntary resignation or constructive dismissal
The letter did not constitute a resignation; the appellant was forced to resign by the respondent's conduct, establishing constructive dismissal.
The court perused the letter dated 22nd June 2020 and found it expressed frustration over non-issuance of an employment letter rather than a resignation; it bore no title of resignation and no one-month notice was given. Applying the contractual (repudiatory breach) test in Coca Cola East & Central Africa Ltd v Maria Ligaga and Western Excavating v Sharp, the court found failure to assign duties and non-payment of dues after six years of service amounted to a repudiatory breach forcing the resignation.
Whether the appellant was entitled to compensation under Section 49 of the Employment Act
Yes; ten months' salary compensation of Kshs.172,040/= was awarded.
Having found constructive dismissal established, the court invoked its power to award compensation and fixed it at ten months of the monthly salary of Kshs.17,204, alongside the unpaid June 2020 days, and declined the unproven heads of overtime, leave, house allowance and public holidays.
Legal principles established
#- Constructive dismissal is established where the employer's conduct constitutes a repudiatory breach of the employment contract and the employee leaves in response to that conduct.
- Failure to assign an employee any duties and non-payment of dues, without even issuing an employment letter, can amount to constructive dismissal.
Court orders
#- 1.The judgment of the trial court delivered on 18th November 2022 is set aside.
- 2.Compensation of ten (10) months' salary amounting to Kshs.172,040/= awarded.
- 3.Kshs.8,502/= awarded for unpaid days in June 2020.
- 4.Overtime, unpaid leave, house allowance and public holidays claims declined as not proven.
- 5.Total award of Kshs.180,542/= plus interest at court rates at 14% per annum from date of judgment till full payment.
- 6.Costs of the appeal and of the lower court trial awarded to the appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Resident Magistrate's Court (Hon. M.W Murage (Mrs), SRM)
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment in an employment claim (Employment and Labour Relations Court); specific enabling provision not cited in the judgment
Relief refused
#Overtime pay
Not proven; the court concurred with the trial court.
Unpaid leave for 6 years 6 months
Not proven.
House allowance
Not proven; salary apparently consolidated per statutory wage rates.
Public holiday pay
Not proven.
Costs
The appellant is awarded costs of the appeal as well as costs of the lower court trial.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the foregoing, this Honourable Court hereby finds a case of constructive dismissal has been established. The judgment of the trial court delivered on 18th November 2022 is therefore set aside
The total award is Kshs.180,542/= plus interest at court rates at 14% per annum from date of judgment till full payment.
The appellant is awarded costs of the appeal as well as costs of the lower court trial.
the employer’s conduct should be so grave that it constituted a repudiatory breach of contract of employment – this is the contractual test.
Issues in the judgment
#The memorandum of appeal refers to non-assignment of duties from '13th June, 2024' although the resignation letter is dated 22nd June 2020; likely a typographical error in the judgment.
The case name is spelled inconsistently within the judgment: 'Western Excavating (ECC) Ltd V Sharp [1978] QB 761' versus 'Western Excavating (ECC) Ltd -vs- Shapr (1978) QB 78'.
The grounds of appeal reference unpaid salary for days worked in June 2019, while the award is for unpaid days in June 2020.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sitati v SGA Security Limited (Employment and Labour Relations Appeal E218 of 2022) [2024] KEELRC 2819 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2819/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.