Nicholas Kiprono Keitany v General Cargo Services Limited

3. Vide his Memorandum of Claim dated 9 th June, 2025 the Claimant seeks the following reliefs: a) Declaration that his termination by the Respondent was unfair b) Terminal dues as herein below tabulated: i. ii. One-month salary in lieu of 115,000.00 Unpaid Bonuses/Incentives for: Notice Kshs. August 2022, September 2022, October 2022, December 2022, February 2023 and April 2023(6 months) Kshs.115,000x6 months iii. Kshs. 690,000.00 Gratuity 15/30x Kshs.115,000.00 x7 yrs. Kshs. 402,500.00 iv. 12 months compensation for unfair Termination Kshs.115,000.00x12 months Kshs. 1,380,000.00 Total Kshs.2,587,500.00 c) Certificate of service d) Costs of this claim and interest thereon at court rates. e) Any other relief that the Honourable Court may deem fit to grant. The Claimant’s Case 2 ELD ELRC NO. E035 OF 2025 JUDGMENT

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4. It is the Claimants case that in the letter of appointment the Respondent stated that he would be paid an initial gross salary of Kshs. 110, 000 per month on the understanding that the salary would be renewed and reviewed upward in June every year. That in total disregard and breach of the said term of contract, the Respondent reviewed his salary only once to Kshs. 115,000 during the entire period that he worked for the Respondent. 5. The Claimant avers that in the course of his employment he performed his duties diligently with unparalleled dedication as the in charge of Nairobi branch admin and customs clearance operations for Air Freight – JKIA and Inland Container Depot (ICD) Embakasi. 6. The Claimant avers that he also handled duties outside his job description including handling administrative duties, petty cash banking, debt collection and banking of cheques. That he further handled clearance OPS for both ICD and JKIA and attended client meetings. 7. The Claimant avers that he consistently met or exceeded his targets, that he maintained professional and respectful 3 ELD ELRC NO. E035 OF 2025 JUDGMENT

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working relationships with colleagues and management, contributing positively to the overall success of the company. 8. The Claimant avers that things changed in March, 2019 when the Respondent engaged a new employee, Mr. Hitesh Kara as Chief Operations Officer. That the Respondent directed the Claimant to hand over ICD operations to Mr. Kara, to whom he handed over all responsibilities including petty cash and safe box keys after induction. That he thereafter proceeded on his annual leave. 9. The Claimant avers that while he was still on annual leave he received information that a sum of Kshs. 20,000 had disappeared from the petty cash safe box which Mr. Kara insisted the Claimant had stolen. The Claimant avers that he called upon the management to investigate the matter but to his dismay the Respondent exhibited lack of willingness to do so, appearing to have taken the position that the Clamant was responsible for the loss. The Claimant avers that henceforth he went from a trusted employee to an ostracized outcast at the workplace. 10. The Claimant contends that the Respondent, through the Chief Operations Officer, embarked 4 ELD ELRC NO. E035 OF 2025 JUDGMENT on a character

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assassination of the Claimant through endless unfounded and unverified accusations which he listed as here below: a) While the claimant was on leave, an air freight team reported a shipment disappeared at Kenya Airways Handling Shed (loading bay). Mr. Kara insisted and that the Claimant and his air freight team were thieves and that the Claimant orchestrated a deal to sell the spare parts and that he deliberately went on leave looking for the market. b) Sometime in 2021 the Claimant was denied leave to attend his father who was critically ill at the time, Mr. Kara insisted that company work was more important than his sick father. The claimant was forced to seek the intervention of The Managing Director Mehul Bhatt who instructed Mr. Kara sign the leave form, but upon returning Mr. Kara refused to allocate our client duties and he was made to stay jobless for a week. c) In 2021 while the Claimant was on leave, a shipment was delivered to one of the respondent's clients but later on, one Mr. Priyeen who works for the respondent claimed that the cargo was erroneously delivered to the said client 5 ELD ELRC NO. E035 OF 2025 JUDGMENT

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because there was an outstanding debt, yet there were no specific instructions to hold the shipment as this was a client on contract for C&F services, which contract only Mr. Priyeen was Privy to. In an interesting turn out of events the Claimant was served with a show letter on his return from leave yet all operations were at the time under Mr. Hitesh who in any case was the right person to be served with the said show cause letter d) Sometime in 2022 the respondent employed a new General Manager by the name Henrike Sorensen. Mr. Kara portrayed a negative image of the Claimant to the said GM in terms of his work ethic forcing the said General Manager to place the Claimant under unreasonable Performance Improvement Plan which did not serve any purpose since his performance was always the best, and no customer left the organization or raised complaints regarding his performance. Despite this, Mr. Henrike made the Claimant's life at the work place unbearable as he always kept reminding him that he would ensure that he (the claimant) does not stay long at the company since 6 ELD ELRC NO. E035 OF 2025 JUDGMENT

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the company had many competent employees it could hire to take over the Claimant's position. e) In the year 2019, 2020 and 2021, the claimant was sidelined from management meetings since in virtually all the meetings that he attended, the management would discuss issues in their ethnic language, Hindi making it difficult for the claimant to follow the discussions which was not only discouraging but also frustrating. 11. It is the Claimant’s case that it is the circumstances set out above that led to his resignation as the Respondent made it impossible for him to continue working in its employment. The Respondent’s Case 12. The Respondent filed a Memorandum of Reply dated 16th December, 2025. The Respondent admitted that it employed the Claimant as a Clearing and Forwarding Manager by letter dated 11th employment Claimant. April, 2016 unfairly The or but denied terminating his constructively dismissing the Respondent averred that the Claimant voluntarily tendered his resignation on 5th May, 2023. 7 ELD ELRC NO. E035 OF 2025 JUDGMENT

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13. The Respondent denied all other averments in the Memorandum of Claim. It further denied that the Claimant is entitled to any of the reliefs sought in his claim and prays that the Claim be dismissed with costs. Evidence 14. At the hearing the Claimant testified as CW1. He adopted his witness statement dated 9th June, 2025 in which he reiterated the averments in the Memorandum of Claim. He also adopted and produced the documents filed with the Claim. 15. Under cross examination the Claimant stated that his understanding of the words “renewed” and “reviewed” in his employment contract was that his salary would be increased every year yet his salary was increased only once. The Claimant further stated that he was not paid incentives. 16. When referred to documents at pages 16 and 18 of the Respondent’s bundle – his pay slips for March and May, 2023 the Claimant stated that he could not recall receiving the pay slip for March, 2023, and did not receive the pay slip for May, 2023. When referred to page 19 of the Respondent’s bundle 8 ELD ELRC NO. E035 OF 2025 JUDGMENT

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– transaction advise from I&M Bank, the Claimant stated that he could not recall his account number off-head. 17. The Claimant however admitted that the 3 rd item on his pay slip for March, 2023 reflected that he was paid incentive of Kshs. 31,855. 18. The Claimant stated that his letter of appointment contained his responsibilities, and among the responsibilities was “petty cash and cheque handling and reporting”. 19. The Claimant stated that he was not aware that the company was restructured. He however stated that he was aware that Velogic bought General Cargo before he was employed. He further stated that his employment letter is under the letter head of General Cargo Services Limited. 20. The Claimant stated that there was an allegation of loss of Kshs. 20,000 which happened while he was on leave. He stated that he raised the issue with Management through an email at page 31 and 32 of his Documents. He stated the email was written one year after the loss of the petty cash. 21. The Claimant testified that he was subjected to disciplinary action several times but none of them led to the termination of his employment. 9 ELD ELRC NO. E035 OF 2025 JUDGMENT

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22. The Claimant testified that there was a shipment of spares that disappeared and he was called a thief. That he was accused of orchestrating the deal then taking leave to go and sell the spares. 23. The Claimant testified that he was denied leave by Hitesh Kara when his father was going for an operation and that Hitesh Kara signed the leave forms only after being instructed to sign by the Managing Director. 24. The Claimant testified that he was taken through disciplinary process following his handling of Orbit Shipment which was delivered to a client without proper approvals after the Claimant was accused of going on leave without properly handing over. He was thereafter issued with a letter of warning. That the letter of warning also informed the Claimant that he and the Airfreight team would be taken through in house training to enable them improve work processes, communication and escalation of critical duties and responsibilities within the Operations Unit. The Claimant agreed that training was not punishment. 25. The Claimant testified that he was moved to Commercial Department where he worked for about one year. That he 10 ELD ELRC NO. E035 OF 2025 JUDGMENT

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was denied airtime and was not paid incentives under the department. He further Commercial Department testified was that his coercive. transfer The to Claimant however admitted that he was paid incentive of Kshs. 8,600 and a further Kshs. 31,855. 26. The Claimant testified that he was suffering from depression and went to hospital. He however admitted that the sick sheet he produced was for a swollen lip. He also admitted that the sick sheet was dated 1 st April, 2020 and his resignation was in 2023. 27. The Claimant testified that he made reference to a colleague by the name Hezron who was referred to as a “moron” by Mr. Kara but did not have evidence to substantiate the same. Respondents Case 28. The Respondent called Josephine Letting, its HR Manager who testified as RW1. She adopted her witness statement dated 16th December, 2025and adopted the Respondent’s documents filed in court as part of her evidence. 29. Under cross examination by Counsel for the Claimant RW1 stated that she joined the company when the Claimant had left employment and was relying on records. 11 ELD ELRC NO. E035 OF 2025 JUDGMENT

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Submissions 30. Upon conclusion of the hearing both parties were directed to file written submissions. The Claimant’s submissions are dated 19th May, 2026 while the Respondent’s submissions are dated 26th June, 2026. Determination 31. Having considered the pleadings, the evidence adduced in court, the rival submissions filed by the parties, the authorities cited and the law, the issues which in my view arise for determination are whether or not the Claimant was constructively dismissed and if he is entitled to the remedies sought in his Memorandum of Claim. Whether or not the Claimant was constructively dismissed 45. Lord Denning MR in Western Excavating (ECC) Ltd. -vSharp [1978] ICR 222 or [1978] QB 761, described constructive dismissal as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be 12 ELD ELRC NO. E035 OF 2025 JUDGMENT

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bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once (emphasis ours). (See also Nottingham County Council -v- Meikle (2005) ICR 1).” 32. Here at home, constructive dismissal is not expressly provided for in the Kenyan legislation. The issue has however been elaborately and robustly litigated and the courts have come up with principles governing the same. 33. The Court of Appeal in the case of Coca Cola East & Central Africa Ltd v Ligaga (Civil Appeal 20 of 2012) [2015] KECA 394 (KLR) (25 September 2015) (Judgment) stated as follows: 13 ELD ELRC NO. E035 OF 2025 JUDGMENT

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“30. The legal principles relevant to determining constructive dismissal include the following: b. What are the fundamental or essential terms of the contract of employment? c. Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer? d. The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. e. An objective test is to be applied in evaluating the employer’s conduct. f. There must be a causal link between the employer’s conduct and the reason for employee terminating the contract i.e. causation must be proved. g. An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination. h. The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from 14 ELD ELRC NO. E035 OF 2025 JUDGMENT

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asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach. i. The burden to prove repudiatory breach or constructive dismissal is on the employee. j. Facts giving rise to repudiatory breach or constructive dismissal are varied.” 34. It was the Claimant’s submission that the cumulative conduct of the Respondent made his work environment intolerable. In the email dated 5th May, 2023 he set out the reasons why he was resigning. The letter is reproduced below: From; GCSPricing Velogic Kenya Date: Fri, May, 2023 at 10:12am Subject: RE- INCENTIVE CLAIM FOR AUGUST 2022 AND SEPTEMBER 2022 –RESIGNATION To: Ryad Bayrajee Ryad.Bayrajee@velogic-mu.com To: Mehul Bhatt Mehul.Bhatt@rogers.mu Dear Mr. Ryad, Good Morning, 15 ELD ELRC NO. E035 OF 2025 JUDGMENT

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I Hope this email finds you well. I wish to inform your that am today 5th May 2023, resigning due to below reasons that has made me not able to perform my duties. 1. Toxic work environment. 2. Unresolved grievances that I officially raised to HR office. 3. False promise of salary review since 2016 till date. 4. Too much aggression from my immediate reporting line that has resulted to public humiliation Infront of junior staff at the office and other acts that amounts to intimidation and bullying and has eroded my confidence and motivation. 5. Denial of KES 1000/- airtime for 5 months that raised in a retaliatory manner and was never communicated officially to me yet I was being pushed to call clients. 6. Non commitment to implementation of the proposed contract and should be noted that I never consent to that proposal. I believe I have done my best over the last 7 year of service and currently Delivered 83% of the freight forwarding budget as from July 23 till date. I was sure to have achieved 95% By end of Jun.23. However I have to stop from here. 16 ELD ELRC NO. E035 OF 2025 JUDGMENT

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Mont Revenu Rev in h e KES Jul-22 3,961.0 534,735.00 0 Target Bal 1,000,000.0 - 0 465,265.00 17,594.90 Aug- 7,537.7 1,017,594. 1,000,000.0 22 4 90 0 Sep- 9,008.7 1,216,175. 1,000,000.0 22 1 85 0 Oct- 15,651. 2,112,963. 1,000,000.0 1,112,963. 22 58 30 0 30 Nov- 4,945.5 667,653.30 1,000,000.0 - 22 8 0 332,346.70 Dec- 8,740.3 1,179,943. 1,000,000.0 179,943.20 22 2 20 0 Jan- 2,966.1 400,430.25 1,000,000.0 - 23 5 0 599,569.75 Fab- 9,095.6 1,227,908. 1,000,000.0 227,908.70 23 2 70 0 Mar- 1,071.9 144,707.85 1,000,000.0 - 23 1 0 855,292.15 Apr- 8,729.0 1,178,415. 1,000,000.0 178,415.00 23 0 00 0 216,175.85 May- 1,000,000.0 - 23 0 1,000,000. 00 Jun- 1,000,000.0 - 23 0 1,000,000. 17 ELD ELRC NO. E035 OF 2025 JUDGMENT

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00 Total 71,707. 9,680,527. 12,000,000. - 61 35 00 2,319,472. 65 Please allow me to handover pending tasks to Mrs. Angela Kuria whom I have frequently done handover notes during my leave days and she understands more about what I have been doing. I did my best to raise all my grievance but unfortunately none has been resolved. With this kind of environment am requesting My last day of work will be on 15th May 2023 or even earlier as continuous working here is causing emotional torture. Kind Regards Nicholas Keitany Pricing Analyst 35. At the hearing the Claimant stated his salary was increased once. He also agreed with counsel for the Respondent that he was paid some sales incentive in March and May, 2023. 36. The Claimant further testified that his letter of appointment provided for additional duties including petty cash and cheque handling and reporting. 18 ELD ELRC NO. E035 OF 2025 JUDGMENT

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37. For an employee to succeed in a claim for constructive dismissal he must prove that his employer made the workplace so intolerable as to give him no option but to resign, or that the employer was in breach of some fundamental term of the employment contract as to entitle the employee to treat the contract as repudiated by the employer. 38. In the present suit what the Claimant has narrated as grounds for his constructive dismissal are mainly disagreements with his co-worker Hitesh Kara. He has otherwise not shown that the Respondent made his working environment intolerable or was in breach of any term of his employment contract. 39. A disagreement dissatisfaction with with the a fellow employee environment under or general which an employee works do not constitute grounds justifying a claim of constructive dismissal. 40. For these reasons I find that the Claimant has not proved that he was constructively dismissed by the Respondent. On the contrary, the Claimant resigned from employment voluntarily. 19 ELD ELRC NO. E035 OF 2025 JUDGMENT

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Is the Claimant entitled to any of the prayers sought in his claim? 41. The Claimant seeks, among other reliefs, a declaration that his termination by the Respondent was unfair. Having reached the finding that there was no proof of constructive dismissal, this prayer is declined. 42. The Claimant further prayed for terminal dues which I will consider under separate heads as claimed. i. One-month salary in lieu of notice Having found that the Claimant was not constructively dismissed, he is not entitled to pay in lieu of notice. ii. Unpaid bonuses The Claimant listed a number of unpaid bonuses. None of them was specifically proved. This being a claim of special damages, the same required strict proof. The prayer is accordingly declined. iii. Gratuity The Claimant’s terms of service did not provide for gratuity and neither does the law. The prayer is accordingly not proved and is declined. iv. 12 months compensation 20 ELD ELRC NO. E035 OF 2025 JUDGMENT

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Having found that the Claimant’s employment was not wrongfully or unfairly terminated, he is not entitled to compensation under this head. v. Certificate of service The Claimant is entitled to certificate of service under section 50 of the Employment Act and the Respondent is directed to issue the same to him within 30 days. vi. Costs The Claimant having not succeeded in his claim for constructive dismissal and other terminal dues with the exception of certificate of service, each party shall bear their costs. 43. In the end, the Claimant’s claim is dismissed in its entirety. 44. Orders accordingly. DATED, DELIVERED AND SIGNED THIS 1ST DAY OF OCTOBER, 2026. M. ONYANGO JUDGE 21 ELD ELRC NO. E035 OF 2025 JUDGMENT

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