Mwangi v Newbold Garage Limited (Cause E857 of 2022) [2025] KEELRC 1604 (KLR)
The bottom line
#Kenya's Employment Court dismissed a constructive dismissal claim because the worker couldn't prove whether she resigned or was fired, and share disputes belong elsewhere.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was terminated by the Respondent and if so whether the termination was fair and justified
- 2.Whether the Claimant is entitled to the remedies sought
Key legal issues
#Whether the Claimant was constructively dismissed
The court could not establish whether the claimant resigned or was dismissed; constructive dismissal and unfair termination were not proved.
The claimant pleaded constructive termination but did not explain the specific act or omission of the respondent that drove her from employment. The respondent alluded to a resignation email dated 11/8/2022 but neither party produced it. In the absence of that evidence, the mode of exit was indeterminable and unfair termination could not be established.
Jurisdiction over shareholding, directorship and dividends
The ELRC lacks jurisdiction to determine issues of company shareholding, directorship and dividends.
The court accepted it had jurisdiction over the employment relationship, which the respondent admitted, but held that the claims touching on directorship, shareholding and dividends arise out of company law and must be pursued in a different forum.
Employer's statutory duty to issue a written contract
The respondent breached Sections 9(1), (2) & (3) of the Employment Act by never issuing the claimant an employment letter.
The respondent admitted the employment relationship through its letter of 22nd August 2022 and RW1's testimony on salary and commission. Having conceded employment, it was obliged to issue a written contract stating particulars of employment, which it never did, attracting the burden-shifting consequence of Section 10(7).
Entitlement to remedies for unfair termination
Remedies for unfair termination are unavailable where the fact of dismissal is not proved.
Having found that it could not determine whether the claimant resigned or was dismissed, the court held it was equally unable to determine the remedies available for wrongful dismissal and declined all the reliefs sought, dismissing the suit.
Legal principles established
#- Where an employer fails to produce a written contract or particulars of employment, the burden of proving or disproving an alleged term of employment lies on the employer
- Contracts of service of three months or more must be in writing
Court orders
#- 1.Dismissal of the claim
- 2.No costs awarded
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Act
Relief refused
#Declaration of constructive termination and 12 months' salary
Court could not ascertain whether the claimant resigned or was dismissed; unfair termination not established
Salary in lieu of notice, car hire expenses, damages for detention of vehicles
Remedies for unfair termination unavailable once termination not established
Declaration of entitlement to dividends and shareholding/directorship reliefs
Lack of jurisdiction over company shareholding and directorship issues
Immediate release of motor vehicle KBF 764E
Dismissed with the entire claim
Costs
No costs awarded - "I therefore dismiss this case accordingly and award no costs in the circumstances."
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.
I therefore find that the remedies sought for unfair termination are not available to the Claimant and the court lacks jurisdiction to handle issues relating to the company shares and directorship. I therefore dismiss this case accordingly and award no costs in the circumstances.
It is therefore my finding that the circumstances under which the Claimant left the Respondents employment cannot be ascertained as to whether it was through a resignation or a dismissal.
On the issue of company shareholding and directorship, this company lacks the requisite jurisdiction to handle the same.
the Respondent had an obligation to issue the Claimant with an employment letter which they never did. This contravenes the provision of the Employment Act Section 9(1), (2) & (3)
Issues in the judgment
#Gender pronouns for the claimant are inconsistent throughout the judgment (both 'she' and 'he/his' used)
Date of alleged constructive termination inconsistently stated (10th August in pleadings, 1st August in findings)
Vehicle registration inconsistently rendered as KBF 764E and KBF 746E; car hire claim computed inconsistently (Kshs. 112,500 claimed but Kshs. 12,500 computed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v Newbold Garage Limited (Cause E857 of 2022) [2025] KEELRC 1604 (KLR)", Case Analysis (2025). Memorandum of Claim dated 21st November 2022 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1604/eng@2025-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.