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ELRCPartially AllowedNot stated in the judgment text provided· [2025] KEELRC 1141 (KLR)

Nyabena v Beshmon Limited (Cause 1495 of 2018) [2025] KEELRC 1141 (KLR)

Employment and Labour Relations Court of Kenya
27 March 2025
4,569 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a former employee who claimed constructive dismissal lost his case because he could not prove it, and must pay most of his employer's legal costs.

What this practically means

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Executive summary

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The Claimant, a former accountant, sued the Respondent company alleging constructive dismissal on 30th March 2018 after an initial termination on 14th July 2017 followed by recall to work. He sought notice pay, house allowance, service gratuity, twelve months' gross salary as compensation for unfair termination, medical insurance cover, leave dues, Embankment fees and a certificate of service. The Respondent denied the claim, asserting he was employed only from 1st June 2009 on a fixed-term contract, and counterclaimed KShs. 100,000, alleging he deserted duty in April 2018. The Court framed four issues. First, it found the 1994 letter of appointment relied upon by the Claimant inauthentic and held employment commenced on 1st June 2009. Second, applying the burden on the employee to prove constructive dismissal, the Court found the Claimant's assertions of non-allocation of work and non-payment unpersuasive and held he failed to prove constructive dismissal, having instead absconded. Consequently, compensation under section 49(1)(c) and notice pay were unavailable. Gratuity failed because the 2009 contract made no provision for it; house allowance was held consolidated in the gross salary; leave dues and the insurance claim were unproved. However, the Respondent was held liable for the admitted KShs. 100,000 Embankment fees for asserting payment without proof, and was directed to issue a certificate of service under section 51 of the Employment Act. The counterclaim succeeded: the Claimant was liable for one month's notice pay, offset against the award, and was ordered to pay 90% of the suit's costs; counterclaim costs went to the Respondent.

Key legal issues

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01

Date of commencement of employment

Holding

The Claimant was employed by the Respondent on 1st June 2009, not 5th January 1994; the 1994 letter relied on was not authentic.

Reasoning

The letter dated 5th January 1994 was unsigned by the employer, and the evidence showed that as at June 2009 the Respondent had no established Human Resource Department capable of issuing such a letter. The Claimant's own admissions under cross-examination showed he was working for NEBCO [K] Ltd in the 1990s and early 2000s, executing letters on its behalf. The Court found the 1994 letter was prepared in ill faith and that the Claimant was not candid about his exact date of employment.

p. 6
02

Constructive dismissal

Holding

The claim for constructive dismissal failed; the Claimant absconded from duty rather than being constructively dismissed.

Reasoning

The burden of proving constructive dismissal lies on the employee and cannot be discharged by generalised assertions. The Claimant did not show that the directors were obliged to assign him daily tasks, and the uncontroverted evidence was that he managed junior staff and was not dependent on daily task allocation. His assertion of non-payment for nine months was unpersuasive given his admission that he was paid for February 2018 and his failure to specify unpaid months. No repudiatory breach was established.

p. 8
03

Remedies dependent on constructive dismissal

Holding

Compensation under section 49(1)(c) of the Employment Act and notice pay, being dependent on constructive dismissal, were unavailable.

Reasoning

The compensatory relief under section 49(1)(c) and notice pay were anchored on the finding of constructive dismissal. Having found none, the Court declined these heads. Other heads failed for want of contractual basis or proof: gratuity was not provided for in the 1st June 2009 contract; house allowance was consolidated in the gross salary; leave dues and the insurance claim were not proved.

p. 8
04

Embankment fees

Holding

The Claimant was entitled to KShs. 100,000 in Embankment fees because the Respondent asserted, without proof of payment, that the amount had been paid.

Reasoning

Although the relief was first raised only in the reliefs section of the pleadings and was otherwise liable to be declined, the Respondent's witness asserted without proof that the amount had been paid to the Claimant. The Court treated this as an admission of entitlement, and in the absence of proof of payment, held the Respondent liable to pay the sum of KShs. 100,000.

p. 9
05

Respondent's counterclaim for notice pay in lieu

Holding

The counterclaim succeeded; the Claimant, having left employment without notice, was liable to pay one month's salary in lieu of notice.

Reasoning

Having found that the Claimant was not constructively dismissed, and given his admission that he left employment without notice, the clause of the employment contract providing for one month's notice or a month's salary in lieu made him liable. The notice pay of KShs. 100,000 was offset against the sum awarded to the Claimant.

p. 9

Legal principles established

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  • The onus to prove constructive dismissal lies on the employee.
  • Gratuity is a contractual benefit and cannot be claimed where the contract of employment does not provide for it.
  • A certificate of service is a statutory entitlement of every employee who exits employment under section 51 of the Employment Act, irrespective of the circumstances of exit.
  • A failure by an employer to provide work may amount to a repudiatory breach supporting constructive dismissal, but the burden must be discharged by specific evidence, not generalised assertions.

Court orders

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  1. 1.Judgment entered for the Claimant for the admitted sum of KShs. 100,000, Embankment fees
  2. 2.The Respondent shall issue the Claimant with a certificate of service within 30 days of the Judgment
  3. 3.The Claimant shall pay the Respondent notice pay of KShs. 100,000, to be offset against the sum awarded in the Claimant's favour
  4. 4.The Claimant shall pay the Respondent 90% of the costs of the suit
  5. 5.Costs of the Counterclaim shall be in favour of the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Employment ActSection 49(1)(c)
  • Employment ActSection 51

Cases cited (6)

  • Jooste v Transnet Ltd [1995] 5 BLLR 1 (LAC)
    [1995] 5 BLLR 1
  • Stephen Michuki v East African Safari Air Express Limited & another [2022] eKLR
    [2022] eKLR
  • Coca Cola East & Central Africa Limited v Maria Ligaga [2015] eKLR
    [2015] eKLR
  • Njuguna v Sybrin Kenya [Employment and Labour Relations Cause E 706 of 2020] [2024] KEELRC 287 (KLR) (16 February 2024)
    [2024] KEELRC 287 (KLR)
  • H. Young & Company E.A Limited vs Javan Were Mbango [2016] eKLR
    [2016] eKLR
  • John Richard Okuku v South Nyanza Sugar Co Ltd [2013] eKLR
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution of Kenya and the Employment Act

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, "Nyabena v Beshmon Limited (Cause 1495 of 2018) [2025] KEELRC 1141 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1141/eng@2025-03-27

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