Bajaber v Planning Systems Services Limited (Cause E871 of 2021) [2025] KEELRC 2846 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was constructively dismissed.
- 2.Whether the Claimant is entitled to the reliefs sought.
- 3.Whether the Respondent deserves the remedies sought under the counter-claim.
- 4.Who bears the costs of the suit.
Key legal issues
#Whether the Claimant was constructively dismissed
No; the Claimant failed to prove constructive dismissal.
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.
Whether the Respondent owed the claimed withheld salary, ex-gratia and dues
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.
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.
Whether the Respondent's counter-claim for notice pay succeeds
Yes; the Respondent is entitled to one month's salary (Kshs.273,800) in lieu of notice.
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.
Legal principles established
#- 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
#- 1.The Respondent to pay the Claimant the admitted final dues of Kshs.1,289,724.07
- 2.Payment of additional ex-gratia payment of Kshs.650,000
- 3.The Respondent to deduct one month salary of Kshs.273,800 from the sums awarded on account of the Counter-Claim
- 4.The Respondent to bear half the costs of the suit, the Counter-Claim having succeeded
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
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.
Costs
The Respondent shall bear half the costs of the suit, the Counter-Claim having succeeded.
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.
a. An order that the Respondent pays the Claimant the admitted final dues in the sum of Kshs.1,289,724.07/=
b. An order for payment of additional ex-gratia payment in the sum of KShs.650,000
c. The Respondent to deduct one month salary being Kshs..273,800 from the sums herein awarded on account of the Counter-Claim.
d. The Respondent shall bear half the costs of the suit, the Counter-Claim having succeeded.
I therefore find and hold that the Claimant has not proved a case of constructive dismissed.
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.
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.
Issues in the judgment
#Paragraph 69 misstates the standard phrase 'I conclude' as 'I concluded', an apparent drafting slip in a first-instance judgment.
The final order (c) repeats the full stop in the figure 'Kshs..273,800' as printed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.