Nyabena v Beshmon Limited (Cause 1495 of 2018) [2025] KEELRC 1141 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Date of commencement of employment
The Claimant was employed by the Respondent on 1st June 2009, not 5th January 1994; the 1994 letter relied on was not authentic.
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.
Constructive dismissal
The claim for constructive dismissal failed; the Claimant absconded from duty rather than being constructively dismissed.
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.
Remedies dependent on constructive dismissal
Compensation under section 49(1)(c) of the Employment Act and notice pay, being dependent on constructive dismissal, were unavailable.
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.
Embankment fees
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.
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.
Respondent's counterclaim for notice pay in lieu
The counterclaim succeeded; the Claimant, having left employment without notice, was liable to pay one month's salary in lieu of notice.
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Claimant for the admitted sum of KShs. 100,000, Embankment fees
- 2.The Respondent shall issue the Claimant with a certificate of service within 30 days of the Judgment
- 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.The Claimant shall pay the Respondent 90% of the costs of the suit
- 5.Costs of the Counterclaim shall be in favour of the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution of Kenya and the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.