Walter v Radar Limited (Cause 396 of 2018) [2025] KEELRC 2601 (KLR)
The bottom line
#A Kenyan court said an employee who resigned voluntarily wasn't constructively dismissed, but the employer still had to pay for unproved unused leave days.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was constructively dismissed
No. The claimant failed to prove a causal link between any employer conduct and his resignation; the resignation was voluntary, based on disclosed ill health.
The court applied the definition of constructive dismissal and the principles in Coca Cola v Ligaga. The medical notes were from October 2015, undated, not a certificate signed by a medical practitioner, and there was no evidence the employer received them. The 30th March 2016 warning was for absconding, evidenced by the claimant's own apology letter, and a similar warning predated the events. With a five-month gap between treatment and resignation, no repudiatory breach or causation was proved on a balance of probabilities.
Whether the claimant was entitled to payment in lieu of outstanding leave days
Yes. The claimant proved non-payment of leave on a balance of probabilities; an adverse inference was drawn against the respondent for failing to produce leave and payment records.
The claimant testified he was never granted leave. The respondent asserted payment but produced no payment documents despite being the custodian of leave records under section 74 of the Employment Act, and its HR manager was evasive. The court held nothing would have been easier than producing payment records and made an adverse finding that the claimant was not paid for outstanding leave days, awarding Kshs. 25,600 with interest.
Whether the claimant was entitled to overtime pay
No. Overtime is special damages and must be pleaded with specificity; it was not.
The court reiterated that overtime constitutes special damages which must be strictly proved and specifically pleaded. The claimant's pleadings did not specify the hours worked beyond official hours, and the claim was therefore disallowed.
Legal principles established
#- The burden to prove constructive dismissal, including a causal link between the employer's conduct and the employee's resignation, lies on the employee.
- Terminal dues and leave records are the employer's custodial responsibility; an employer alleging payment must produce evidence of payment.
- A claim for overtime is a claim in special damages which must be pleaded with specificity and strictly proved.
Court orders
#- 1.Judgment entered for the claimant against the respondent for payment of 21 annual leave days in lieu in the amount of Kshs. 25,600 with interest at court rate from the date of filing the suit
- 2.The claim for constructive dismissal and unfair termination dismissed; resignation held voluntary
- 3.The claim for overtime disallowed
- 4.Claimant awarded costs of the suit
- 5.Stay of execution of 30 days granted
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied); claim brought under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walter v Radar Limited (Cause 396 of 2018) [2025] KEELRC 2601 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2601/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.