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ELRCPartially AllowedNot stated in the judgment (Employment and Labour Relations Cause, Eldoret)· [2025] KEELRC 508 (KLR)

Kalenywa v Rivatex East Africa Ltd (Cause 399 of 2018) [2025] KEELRC 508 (KLR)

Employment and Labour Relations Court of Kenya
20 February 2025
MOMaureen Onyango
5,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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An Eldoret court found the employee resigned voluntarily, not constructively dismissed, but still awarded him unpaid wages, underpayments, leave allowance and a certificate of service.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a trainee and later confirmed as a Machine Operator on permanent and pensionable terms, sued for compensation alleging unfair and unlawful suspension and constructive dismissal. His case was that on 22nd January 2015 his supervisor instructed him to burn waste at the Respondent's premises; the fire escaped but did not destroy property, and he was suspended for one month without pay, after which the Human Resource Manager allegedly required a further month's suspension and told him to resign so he could be paid. He claimed declarations of breach of constitutional rights, leave pay, unpaid salaries, reduced salary, underpayment, notice pay, 12 months' compensation and service gratuity. The Respondent denied that the Claimant was authorised to burn waste, said the fire was unsanctioned and negligent, maintained the suspension was a lawful disciplinary measure, and asserted that the Claimant resigned voluntarily on 2nd March 2015. The court framed two issues: whether the Claimant was constructively terminated or resigned voluntarily, and entitlement to reliefs. Applying the contractual test for constructive dismissal from Coca-Cola East & Central Africa Limited v Maria Kagai Lugaga, the court found the resignation letter expressed no grievance, no evidence showed the suspension was extended or that the Claimant was told to resign, and suspension without pay was not a repudiatory breach; the Claimant therefore resigned voluntarily. Judgment was entered for the Claimant on limited heads: Kshs. 5,000 leave travelling allowance, Kshs. 28,024 unpaid salaries for January and February 2015, Kshs. 16,413.20 underpayments, an order for a certificate of service, and 50% costs to the Claimant.

Key legal issues

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01

Whether the Claimant was constructively dismissed or resigned voluntarily

Holding

The Claimant was not constructively dismissed; he resigned voluntarily.

Reasoning

Applying the contractual test in Coca-Cola East & Central Africa Limited v Maria Kagai Lugaga, the court examined the resignation letter, which thanked management and gave no complaint of intolerable conditions. There was no evidence that the suspension was extended for another month or that the Claimant was asked to resign to be paid. Suspension without pay was not a repudiatory breach. The burden of proving constructive dismissal lies on the employee and was not discharged.

p. 10
02

Entitlement to leave travelling allowance

Holding

Claimant awarded Kshs. 5,000 being the difference between contractual leave travelling allowance of Kshs. 1,500 per annum and Kshs. 500 actually paid, for five years.

Reasoning

Paragraph 5 of the Offer of Employment provided for Kshs. 1,500 per annum leave travelling allowance, but the leave application forms showed only Kshs. 500 was paid. The court awarded the shortfall for the five years of employment.

p. 11
03

Unpaid salaries for January and February 2015

Holding

Awarded Kshs. 28,024.00 for the two months.

Reasoning

There was no evidence the Claimant was paid for days worked before suspension up to 23rd January 2015, and the Respondent adduced no evidence that its terms permitted suspension without pay. Using the Regulation of Wages (General)(Amendment) Order 2013 rates for a machine operator (Kshs. 14,011.90 monthly), the court awarded two months' salary.

p. 11
04

Underpayment of wages for 18 months

Holding

Awarded Kshs. 16,413.20 under this head.

Reasoning

The Claimant pleaded and testified that from July 2013 he was paid Kshs. 13,100 instead of Kshs. 14,011.89 prescribed under the Regulation of Wages (General)(Amendment) Order 2013, and this evidence was not rebutted by the Respondent.

p. 11

Legal principles established

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  • Pleading constructive dismissal is not enough; the employee must demonstrate through evidence that the resignation was compelled by the employer's conduct amounting to a repudiatory breach.
  • Suspension without pay on disciplinary grounds is not a repudiation of the employment contract.

Court orders

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  1. 1.It is hereby declared that the Claimant resigned voluntarily from the Respondent's employment.
  2. 2.The Claimant is awarded Leave travelling allowance of Kshs. 5,000.
  3. 3.The Claimant is awarded unpaid salaries for January 2015 and February 2015 of Kshs. 28,024.00.
  4. 4.The Claimant is awarded underpayments of Kshs. 16,413.20.
  5. 5.The Respondent is directed to issue the Claimant with a certificate of service.
  6. 6.The Respondent shall meet 50% of the Claimant's costs of this suit as he has been only partly successful.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution of Kenya, 2010 and the Employment Act, 2007 (not expressly quoted in the judgment)

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, "Kalenywa v Rivatex East Africa Ltd (Cause 399 of 2018) [2025] KEELRC 508 (KLR)", Case Analysis (2025). Not stated in the judgment (Employment and Labour Relations Cause, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/508/eng@2025-02-20

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