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ELRCDismissedPetition dated 30th April 2024· [2025] KEELRC 359 (KLR)

Kinyanjui v ASA International (Kenya) Limited (Petition E073 of 2024) [2025] KEELRC 359 (KLR)

Employment and Labour Relations Court
10 February 2025
HWHellen Wasilwa
9,931 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a clear, voluntary resignation letter with no complaints cannot later be reframed as constructive dismissal or pay discrimination.

What this practically means

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Executive summary

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The petitioner, formerly Manager and later Assistant Director of HR and Administration at ASA International (Kenya) Limited, petitioned the ELRC claiming that his resignation effective February 2024 amounted to constructive dismissal caused by a hostile work environment, and that the respondent racially discriminated against him in remuneration by maintaining a confidential expatriate payroll under which Sankar Das, allegedly in the same job grade, earned twice his salary. He sought declarations of constructive dismissal and constitutional violations (Articles 27, 28, 41 and 43), general damages equivalent to 12 months' salary, and special damages of KShs. 14,511,823.92 for the salary differential. The respondent denied discrimination, attributing salary differences to qualifications, experience and length of service, and filed a cross-petition with Sankar Das claiming KShs. 5,000,000 each for breach of privacy and confidentiality arising from the petitioner's disclosure of salary data. The court framed four issues: constructive dismissal, violation of rights, the cross-petition, and remedies. Applying the Coca Cola test, it held the petitioner's resignation letter was clear and unambiguous and evidenced voluntary departure with no causal link to employer misconduct. On discrimination, it found no evidence that the petitioner and Das were in the same job group or performed similar duties, and the comparator's 32 years of service justified differential pay. The cross-petition failed because there was no evidence the petitioner shared information with bloggers or that injury was suffered. Both the petition and cross-petition were dismissed, with each party bearing its own costs.

Key legal issues

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01

Constructive dismissal

Holding

The petitioner was not constructively dismissed; his resignation was voluntary and unambiguous

Reasoning

Applying the Coca Cola test, the court required a fundamental breach going to the root of the contract and a causal link between the employer's conduct and the resignation. The petitioner's resignation letter thanked the employer, offered transition assistance and assigned no negative reasons. He was released on 15/2/2024 and his dues were calculated and signed off, indicating an amicable departure.

p. 16
02

Alleged racial discrimination in remuneration

Holding

The discrimination claim failed for want of proof of equal work in the same job group

Reasoning

Although the petitioner alleged a parallel expatriate payroll and produced salary records, the court found no documents proving he and Sankar Das were in the same job group or performed similar duties. The comparator had served for over 32 years in progressively senior roles, which objectively justified different remuneration. Under Section 5 of the Employment Act, equal remuneration applies to work of equal value.

p. 17
03

Cross-petition for breach of privacy and data protection

Holding

The cross-petition failed for lack of proof of disclosure and injury

Reasoning

The cross-petitioners alleged that the petitioner breached confidentiality and the right to privacy by disclosing Sankar Das's salary and sharing data with bloggers. The court found no clear evidence of any sharing of information with third parties and no demonstrated injury, so the cross-petition could not succeed.

p. 18

Legal principles established

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  • Constructive dismissal requires a fundamental breach by the employer and a causal link between the employer's conduct and the employee's resignation
  • An employer may distinguish, exclude or prefer a person on the basis of an inherent requirement of a job or objective factors such as seniority without engaging in unlawful discrimination

Court orders

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  1. 1.The petition fails
  2. 2.The cross-petition fails
  3. 3.Each party shall bear its own costs
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12; Constitution Articles 27, 28, 31, 41 and 43

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, "Kinyanjui v ASA International (Kenya) Limited (Petition E073 of 2024) [2025] KEELRC 359 (KLR)", Case Analysis (2025). Petition dated 30th April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/359/eng@2025-02-10

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