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ELRCPartially AllowedNot specified in the judgment (memorandum of claim dated 24th October, 2023)

Kimata v China Young Tai Engineering Company Limited (Employment and Labour Relations Cause E054 of 2023) [2024] KEELRC 2796 (KLR)

Employment and Labour Relations Court
14 November 2024
4,645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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An employee who resigns in Kenya can still win service pay, but must prove complaints to claim constructive dismissal.

What this practically means

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Executive summary

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The claimant, engaged orally by the respondent in 2006 as an electrical technician earning Kshs 100,000 monthly, resigned on 10th January 2023 alleging hostile and abusive treatment by the respondent's director, and sued for constructive dismissal, compensation, leave pay, retirement benefits, unpaid service pay, overtime, unpaid salary, general damages, costs and a certificate of service. The respondent admitted the engagement but contended the claimant was an overseer/consultant on flexible hours who absconded and resigned without notice, and counterclaimed for one month's notice pay. The respondent's submissions were not availed to the court. The court, per Wasilwa J, held that under section 10(7) of the Employment Act, the failure to issue a written contract meant the claimant's stated terms prevailed, establishing full-time employment. However, the constructive dismissal claim failed: the claimant admitted resigning and produced no evidence that he had raised complaints of hostility which went unaddressed. The abscondment allegation equally failed since the respondent admitted resignation. The leave claim was untenable and time barred; the overtime claim failed for want of time sheets. The court awarded terminal dues of 15 days' salary per year for 17 years, totalling Kshs 850,000 less statutory deductions, with costs and interest at court rates from the date of judgment. The counterclaim was not expressly determined.

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 an employee of the respondent or an independent contractor
  2. 2.Whether the claimant resigned or absconded duty
  3. 3.Whether the claimant's resignation amounted to constructive dismissal and therefore unfair termination
  4. 4.Whether the claimant is entitled to the reliefs sought, including leave pay, service pay, overtime, unpaid salary and compensation
  5. 5.Whether the respondent's counterclaim for one month's notice pay is merited

Key legal issues

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01

Status of the claimant - employee or independent contractor

Holding

The claimant was a full-time employee on Kshs 100,000 monthly salary and Kshs 100,000 yearly bonus; because the employer failed to issue a written contract, the terms as stated by the claimant are adopted

Reasoning

Section 10(7) of the Employment Act places the burden of proving or disproving alleged terms of employment on the employer where no written contract is produced. The respondent admitted employing the claimant orally from 2006 and paying a monthly salary, and its own witness conceded he served full time. The court therefore adopted the claimant's version of the terms.

p. 8
02

Constructive dismissal

Holding

The claim was not established. The claimant resigned voluntarily and failed to prove he complained of the alleged hostile environment and was ignored

Reasoning

An employee alleging constructive dismissal must demonstrate that the employer's conduct rendered employment intolerable and that complaints were raised and unaddressed. The claimant admitted he never reported the alleged insults and produced no evidence of unattended complaints. He therefore resigned; constructive dismissal could not lie.

p. 8
03

Abscondment and the counterclaim for notice pay

Holding

The respondent's allegation of abscondment failed because the respondent admitted the claimant resigned without notice

Reasoning

The respondent pleaded desertion/abscondment but simultaneously admitted the claimant resigned. Having admitted resignation, the abscondment allegation could not stand. The judgment does not expressly determine the counterclaim for one month's notice pay.

p. 8
04

Terminal dues of a resigning employee

Holding

The claimant was awarded service pay of 15 days' salary for each of the 17 years worked, totalling Kshs 850,000

Reasoning

Although the claimant was not terminated, the court held he remained entitled to terminal dues under section 35(5) of the Employment Act, quantified at 15/30 x 17 x 100,000 = Kshs 850,000, less statutory deductions.

p. 9

Legal principles established

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  • Where an employer fails to issue a written contract of service, the burden of proving or disproving the alleged terms of employment rests on the employer
  • An employee alleging constructive dismissal bears the burden of proving that he raised complaints of a hostile environment with the employer and they went unaddressed
  • An employee who resigns is still entitled to terminal dues as provided by section 35(5) of the Employment Act, assessed at 15 days' salary per year worked

Court orders

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  1. 1.The respondent to pay the claimant terminal dues (service pay) of Kshs 850,000 less statutory deductions, computed at 15 days' salary for each of the 17 years worked
  2. 2.The respondent to pay the costs of the suit
  3. 3.Interest on the awarded sum at court rates with effect from the date of the judgment

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

Relief refused

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Declaration of unlawful/unfair constructive dismissal

The claimant resigned voluntarily and produced no evidence that he raised complaints of hostility which went unattended

p. 8

Compensation for unfair termination/constructive dismissal

Having found that the claimant resigned, compensation cannot stand

p. 8

Leave pay of Kshs 900,000 for 9 years (2006-2014)

No evidence that the claimant requested leave and was denied, and the claim is also time barred

p. 8

Unpaid overtime dues of Kshs 898,560

No time sheet or evidence produced to prove overtime was worked

p. 9

Unpaid service fee for 2018, 2020 and 2022 (Kshs 300,000), unpaid salary for days worked (Kshs 33,333), general damages, and retirement benefits of Kshs 800,000

Not granted; the court awarded only terminal dues set at 15 days' salary per year worked

p. 9

Costs

The respondent will pay the costs of this suit plus interest at court rates with effect from the date of the judgment

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.

The total awarded to the claimant is therefore kshs 850,000/- less statutory deductions.
p. 9Final orders - award of terminal dues
The respondent will pay costs of this suit plus interest at Court rates with efiect from the date of this judgment.
p. 9Final orders - costs and interest
The employer having failed to issue the claimant herein with an employment contract, it follows that the terms to be adopted by this Court are terms as stated by the claimant
p. 8Burden of proof where no written contract exists
The claimant agreed that he resigned from employment and I find that that, is the correct position and his allegation that he was constructively terminated cannot lie.
p. 8Failure of constructive dismissal claim
Claim for overtime cannot stand given that there is no evidence of time sheet as worked by the claimant to prove he worked overtime.
p. 9Overtime claim dismissed for want of evidence

Issues in the judgment

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material

The respondent's counterclaim for one month's notice pay is neither expressly allowed nor dismissed in the judgment; the disposition addresses only the claimant's reliefs

minor

The service pay computation uses a hyphen where an equals sign is evidently intended

minor

The claimant's leave claim period is internally inconsistent - pleaded as 9 years (2006-2014) and service pay relies on 17 years worked to 2023

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, "Kimata v China Young Tai Engineering Company Limited (Employment and Labour Relations Cause E054 of 2023) [2024] KEELRC 2796 (KLR)", Case Analysis (2024). Not specified in the judgment (memorandum of claim dated 24th October, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2796/eng@2024-11-14

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