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ELRCPartially AllowedNot stated in the extract

Bajaber v Planning Systems Services Limited (Cause E871 of 2021) [2025] KEELRC 2846 (KLR)

Employment and Labour Relations Court
23 October 2025
4,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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An employee's resignation without notice cost him a month's salary, but his employer still had to pay admitted dues and a promised ex-gratia bonus.

What this practically means

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Executive summary

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In this first-instance ELRC claim, a former Design Architect/Design Lead of Planning Systems Services Limited claimed Kshs.3,795,772, comprising withheld salary of Kshs.1,350,000, unpaid August 2021 salary, September 2021 days worked, leave and terminal dues, and thirteenth-month salary, and sought a declaration of constructive dismissal. The Respondent admitted final dues of Kshs.1,289,724.07, denied constructive dismissal, contended the ex-gratia of Kshs.650,000 was conditional and forfeited on resignation, denied any contractual thirteenth-month salary, and counterclaimed one month's salary (Kshs.273,800) in lieu of notice for the Claimant's immediate resignation. The court framed four issues: constructive dismissal, entitlement to reliefs, the counter-claim, and costs. Applying Western Excavating v Sharp, it held the Claimant was aware of and acquiesced to the salary reductions and furloughs, and failed to prove constructive dismissal. Judgment was entered on admission for Kshs.1,289,724.07 per Choitram v Nazari. The court held the ex-gratia offer had crystallised into property and awarded the additional Kshs.650,000, noting a 2020 letter acknowledging Kshs.1,350,000 on account of ex-gratia. The thirteenth-month salary and residual leave claims failed for want of proof. The counter-claim succeeded, entitling the Respondent to deduct one month's salary in lieu of notice. Both claim and counter-claim succeeded in part; the Respondent was ordered to bear half the costs of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant was constructively dismissed.
  2. 2.Whether the Claimant is entitled to the reliefs sought.
  3. 3.Whether the Respondent deserves the remedies sought under the counter-claim.
  4. 4.Who bears the costs of the suit.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

No; the Claimant failed to prove constructive dismissal.

Reasoning

Applying the Western Excavating test, the court found no conduct by the employer showing it no longer intended to be bound by the contract. The Claimant was aware of the salary reductions and furloughs and acquiesced to them. He resigned immediately after being invited to discuss new terms, and the warning letter of 16th March 2021 followed admitted absenteeism. Disillusionment with delays and reduced pay did not meet the threshold of a significant breach going to the root of the contract.

p. 7
02

Whether the Respondent owed the claimed withheld salary, ex-gratia and dues

Holding

Judgment entered on admission for Kshs.1,289,724.07 plus the ex-gratia balance of Kshs.650,000; thirteenth-month and residual leave claims failed.

Reasoning

The Respondent admitted owing final dues of Kshs.1,289,724.07, warranting judgment on admission per Choitram v Nazari. The ex-gratia offer of Kshs.650,000 had crystallised, as a letter of 12th June 2020 acknowledged Kshs.1,350,000 owed on account of ex-gratia; forfeiture on resignation could not stand. However, the thirteenth-month salary claim was not a contractual entitlement and no evidence proved it, and the leave claim beyond the admitted portion was unproven given the furloughs the Claimant accepted.

p. 8
03

Whether the Respondent's counter-claim for notice pay succeeds

Holding

Yes; the Respondent is entitled to one month's salary (Kshs.273,800) in lieu of notice.

Reasoning

The Claimant resigned with immediate effect by his letter of 13th September 2021, severing employment without notice. Since constructive dismissal was not established, he was bound to give one month's notice or pay salary in lieu. The court followed authority holding that employees who resign without serving or paying for contractual notice are in breach, and allowed the counter-claim as prayed.

p. 9

Legal principles established

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  • Judgment may be entered on a clear and unambiguous admission of debt.
  • Where an employer has acknowledged an ex-gratia offer as owed, the sum has crystallised and cannot be forfeited merely because the employee resigned.
  • An employee who resigns without serving or paying for the contractual notice period, where constructive dismissal is not proved, is liable to pay one month's salary in lieu of notice.

Court orders

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  1. 1.The Respondent to pay the Claimant the admitted final dues of Kshs.1,289,724.07
  2. 2.Payment of additional ex-gratia payment of Kshs.650,000
  3. 3.The Respondent to deduct one month salary of Kshs.273,800 from the sums awarded on account of the Counter-Claim
  4. 4.The Respondent to bear half the costs of the suit, the Counter-Claim having succeeded

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim and counter-claim)

Relief refused

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Constructive dismissal declaration and reliefs flowing from it

Claimant did not prove conduct amounting to a fundamental breach; he was aware of and acquiesced to the salary reductions and furloughs.

p. 7

Claim for thirteenth month salary of Kshs.1,309,502

No evidence led to show entitlement to a 13th salary beyond the ex-gratia partly admitted and partly proved.

p. 8

Leave claim beyond the admitted Kshs.214,827.69

Not proven given the Claimant's admission of reduced working hours and the furlough programme from 2019 to 2021.

p. 8

Costs

The Respondent shall bear half the costs of the suit, the Counter-Claim having succeeded.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a. An order that the Respondent pays the Claimant the admitted final dues in the sum of Kshs.1,289,724.07/=
p. 9final orders - judgment on admission
b. An order for payment of additional ex-gratia payment in the sum of KShs.650,000
p. 9final orders - ex-gratia
c. The Respondent to deduct one month salary being Kshs..273,800 from the sums herein awarded on account of the Counter-Claim.
p. 9final orders - counter-claim notice pay
d. The Respondent shall bear half the costs of the suit, the Counter-Claim having succeeded.
p. 9final orders - costs
I therefore find and hold that the Claimant has not proved a case of constructive dismissed.
p. 7constructive dismissal
The ofier in my view is property that had already crystalized, and is in no way bound by whether or not the Claimant continued to work for the Respondent.
p. 8crystallised ex-gratia offer
In the case of Choitram & Another v. Nazari [1984] KECA 47 (KLR), the court stated that admissions must be clear and unambiguous, and that once made, judgment may be entered on that basis.
p. 8judgment on admissions

Issues in the judgment

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minor

Paragraph 69 misstates the standard phrase 'I conclude' as 'I concluded', an apparent drafting slip in a first-instance judgment.

minor

The final order (c) repeats the full stop in the figure 'Kshs..273,800' as printed.

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, "Bajaber v Planning Systems Services Limited (Cause E871 of 2021) [2025] KEELRC 2846 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2846/eng@2025-10-23

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