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ELRCDismissedCause No 621 of 2019· [2024] KEELRC 2741 (KLR)

Obwogo v Verve KO Limited (Cause 621 of 2019) [2024] KEELRC 2741 (KLR)

Employment and Labour Relations Court
7 November 2024
LNLINNET NDOLO
1,005 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a constructive dismissal claim because the employee had no resignation letter and no proof of unpaid salary arrears.

What this practically means

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Executive summary

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The Claimant, engaged on 25th August 2014 as a Systems Engineer/Consultant on a gross monthly salary later raised to Kshs. 275,000, brought a claim of constructive dismissal, alleging that the Respondent's failure in 2018 to pay salary and bonus arrears of Kshs. 1,457,000 forced him out of employment. He sought one month's notice pay, outstanding salaries of Kshs. 1,005,000 for 2018 and 2019, service pay for four years, and twelve months' salary in compensation. The Respondent admitted the employment but denied constructive dismissal, accusing the Claimant of deserting work without notice, denying the salary arrears, and asserting the Claimant was not contractually entitled to bonus or service pay; it admitted paying Kshs. 200,000 as part of the arrears. The court framed two issues: whether constructive dismissal was proved and whether remedies were due. Applying the principles in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga, the court found no proof of constructive dismissal, noting the absence of any resignation letter, while also holding that the Respondent failed to prove desertion, having shown no efforts to summon the Claimant to show cause. The relationship was found simply to have fizzled out. The salary arrears claim failed as unproved special damages, and the service pay claim failed because the Claimant contributed to NSSF. The entire claim was dismissed, with each party bearing their own costs. Judgment delivered virtually at Nairobi on 7th November 2024 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether constructive dismissal was proved

Holding

Not proved; the evidence suggested the Claimant simply walked away without a resignation letter.

Reasoning

The court applied the Coca Cola v Ligaga principles, requiring proof of a repudiatory breach of fundamental terms and a causal link. The Claimant produced no resignation letter and appeared to have simply walked away. Equally, the Respondent did not prove desertion since it made no efforts to summon the Claimant to show cause. The court found the relationship was allowed to fizzle out.

p. 3
02

Entitlement to remedies

Holding

All heads of claim failed: notice pay and compensation disallowed, salary arrears not proved as special damages, service pay barred by NSSF contributions.

Reasoning

Having found no constructive dismissal, the compensation and notice claims fell away. The salary arrears claim was treated as special damages requiring specific pleading and proof, which was not discharged. Service pay was unavailable because the Claimant admittedly contributed to NSSF. The entire claim was dismissed.

p. 3

Legal principles established

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  • Desertion as an administrative offence must be proved by the employer, including efforts to summon the employee to show cause.
  • Claims for salary arrears fall under special damages which must be specifically pleaded and proved.
  • A contributing member of NSSF is not entitled to service pay.

Court orders

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  1. 1.The Claimant's entire claim is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Cases cited (3)

  • Nathan Ogada Atiagaga v David Engineering Limited
    [2015] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment and Labour Relations Court)

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, "Obwogo v Verve KO Limited (Cause 621 of 2019) [2024] KEELRC 2741 (KLR)", Case Analysis (2024). Cause No 621 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2741/eng@2024-11-07

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