Kenga v Petrocity Enterprises Limited (Cause E051 of 2022) [2025] KEELRC 2495 (KLR)
The bottom line
#A Kenyan court ruled that an employee forced to resign by humiliating treatment was constructively dismissed, awarding compensation and notice pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Yes. The Managing Director's public insults, humiliation, unfounded accusation of complicity in the loss, threat of arrest and pressure to resign breached the implied duty of trust and confidence, justifying the Claimant's prompt resignation.
The court applied the contractual test, finding a breach of the implied term of trust and confidence. The Respondent failed to call the Managing Director whose conduct was central to the dispute, presenting instead a witness who joined in 2021 and could not speak to the events. The Claimant's evidence therefore remained unchallenged. The conduct was calculated to destroy trust and confidence, so the resignation was legally a constructive dismissal.
Whether the Claimant was entitled to compensation under section 49(1)(c) of the Employment Act and to what extent
Yes, to the extent of 8 months' gross salary (KShs. 680,000), considering the Managing Director's conduct, the absence of proven contribution by the Claimant, and his length of service.
The compensatory relief under section 49(1)(c) is discretionary and its extent depends on the peculiar circumstances of each case. The court considered the Managing Director's indifference to the employment relationship, the absence of any proven contribution by the Claimant to the dismissal, and his 17-19 years of service in fixing compensation at 8 months' gross salary.
Whether claims for leave, weekly rest days and NSSF remittances dating back to 2002-2010 were recoverable
No. They are continuing injury claims time-barred under section 90 of the Employment Act, having to be filed within twelve months of cessation of the injury.
Relying on the Court of Appeal's decision in German School Society v Ohany, the court held that non-payment in lieu of leave is a continuing injury claim under section 90 of the Employment Act, which must be filed within twelve months of cessation. By parity of reasoning, the rest-day and NSSF claims for 2002-2006/2007 were also filed out of time and were declined.
Whether the Claimant proved his overtime claim
No. The claim of KShs. 1,243,113.30 was unproven.
The Claimant had no records of overtime, admitted there were no fixed working hours and that extended hours depended on workload, yet computed the claim on fixed hours per day. The court found the claim was simply thrown to the Court without answers to the pivotal questions of normal hours, days worked overtime, and the basis of computation.
Whether the Claimant was entitled to notice pay
Yes. Employment was terminable by 28 days' notice under section 35 of the Employment Act, and no notice was issued, entitling the Claimant to notice pay under section 36.
The court found that the Claimant's employment was terminable by 28 days' notice under section 35 of the Employment Act. In the circumstances of the constructive dismissal no notice was issued, and the Claimant was therefore entitled to notice pay under section 36 of the Act, awarded as one month's salary of KShs. 85,000.
Legal principles established
#- At the centre of a claim for constructive dismissal is always the conduct of the employer, not the employee; constructive dismissal occurs where the employer's conduct evinces an intention no longer to be bound by the contract
- Two tests apply to constructive dismissal: the contractual test (breach of an express or implied term sufficiently serious) and the unreasonable test (cumulative conduct making continued employment intolerable); which applies depends on the circumstances, with caution where the unreasonable test is used
- There is an implied term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the trust and confidence between the parties
- Claims for non-payment in lieu of leave days are continuous injury claims which must be filed within twelve months of cessation of the injury under section 90 of the Employment Act
- Gratuity is not a statutory benefit; it is a contractual benefit or one flowing from a practice within an enterprise, which must be proved
- Where an employer fails to call the key actor whose conduct is central to the dispute, the claimant's unchallenged evidence stands
- A resignation procured by conduct that destroys trust and confidence is a constructive dismissal, not a voluntary resignation
Court orders
#- 1.A declaration that the Claimant was constructively dismissed
- 2.Compensation pursuant to section 49[1] of the Employment Act, KShs. 680,000
- 3.One month's salary in lieu of notice, KShs. 85,000
- 4.Interest on the awarded sum at court rates from the date of the Judgment till full payment
- 5.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (reliefs claimed under sections 49, 35, 36 and 90 of the Employment Act); specific constitutional provision not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenga v Petrocity Enterprises Limited (Cause E051 of 2022) [2025] KEELRC 2495 (KLR)", Case Analysis (2025). Memorandum of Claim dated 16th June 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2495/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.