Kimata v China Young Tai Engineering Company Limited (Employment and Labour Relations Cause E054 of 2023) [2024] KEELRC 2796 (KLR)
The bottom line
#An employee who resigns in Kenya can still win service pay, but must prove complaints to claim constructive dismissal.
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 an employee of the respondent or an independent contractor
- 2.Whether the claimant resigned or absconded duty
- 3.Whether the claimant's resignation amounted to constructive dismissal and therefore unfair termination
- 4.Whether the claimant is entitled to the reliefs sought, including leave pay, service pay, overtime, unpaid salary and compensation
- 5.Whether the respondent's counterclaim for one month's notice pay is merited
Key legal issues
#Status of the claimant - employee or independent contractor
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
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.
Constructive dismissal
The claim was not established. The claimant resigned voluntarily and failed to prove he complained of the alleged hostile environment and was ignored
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.
Abscondment and the counterclaim for notice pay
The respondent's allegation of abscondment failed because the respondent admitted the claimant resigned without notice
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.
Terminal dues of a resigning employee
The claimant was awarded service pay of 15 days' salary for each of the 17 years worked, totalling Kshs 850,000
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.
Legal principles established
#- 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
#- 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.The respondent to pay the costs of the suit
- 3.Interest on the awarded sum at court rates with effect from the date of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Relief refused
#Declaration of unlawful/unfair constructive dismissal
The claimant resigned voluntarily and produced no evidence that he raised complaints of hostility which went unattended
Compensation for unfair termination/constructive dismissal
Having found that the claimant resigned, compensation cannot stand
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
Unpaid overtime dues of Kshs 898,560
No time sheet or evidence produced to prove overtime was worked
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
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
#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.
The respondent will pay costs of this suit plus interest at Court rates with efiect from the date of this judgment.
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
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.
Claim for overtime cannot stand given that there is no evidence of time sheet as worked by the claimant to prove he worked overtime.
Issues in the judgment
#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
The service pay computation uses a hyphen where an equals sign is evidently intended
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.