Odhiambo v Kisang & 3 others (Cause E089 of 2023) [2025] KEELRC 436 (KLR)
The bottom line
#A Kenyan court ruled that an employee's resignation made under pressure was invalid, awarding him dues, gratuity, notice pay and compensation.
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 wrongfully terminated from his employment or his Constitutional right to fair hearing was breached
- 2.Whether the resignation was voluntary or validly rescinded
- 3.Whether the Claimant was defamed in the notice to show cause letter
- 4.Whether the Claimant should be awarded damages including aggravated damages
Key legal issues
#Whether the Claimant's resignation was voluntary and validly accepted after withdrawal
The resignation was not voluntary, having been made in the heat of the moment under pressure, and its rescission preserved the Claimant's right to due process; the employer's acceptance of the withdrawn resignation was improper
The Court relied on McManus v Brian McCarthy Contractors and Kwik-Fit v Lineham principles. It found the resignation was made amid impending disciplinary hearings, persistent interference with the Claimant's docket, and health-related distress. The employer should have investigated the Claimant's true intentions before accepting the resignation. The rescission did not extinguish the Claimant's right to due process or the benefit of the repudiation.
Whether the failure to hold a disciplinary hearing amounted to a violation of fair process
The employer failed to hear the Claimant, warranting compensation of three months' salary
Although the Respondents contended the Claimant evaded the hearings, the Court found the disciplinary hearings never took off and the Claimant was not heard. The Court awarded three months' salary as compensation for the failure to hear the Claimant and for the obtuse acceptance of his resignation after it was withdrawn, taking mitigation into account.
Whether the notice to show cause was defamatory
No defamation was established because the letter was confidential and not published to third parties
Publication is an essential element of defamation. The notice to show cause was addressed solely to the Claimant and not copied to unauthorized third parties, so it could not lower his reputation in the estimation of right-minded members of society. The defamation limb of the claim was therefore dismissed.
Legal principles established
#- Where an employee resigns impulsively under pressure or humiliation, the employer has a duty to investigate the employee's true intentions before accepting the resignation
- A resignation offered in the face of impending disciplinary action in the heat of the moment may be inferred to be involuntary and may be rescinded
Court orders
#- 1.Unpaid terminal dues amounting to Kshs. 704,000/- less any sums paid subsequent to the Claimant testifying in Court
- 2.Unpaid gratuity if any, being gratuity accumulated per his August 2023 payslip of Kshs. 1,488,324.15 less any gratuity already paid out
- 3.One month's salary as notice – Kshs. 378,481.10
- 4.Compensation of 3 months' pay – Kshs. 1,135,443.30
- 5.Costs of the suit
- 6.Interest at court rates on the sums awarded from the date of judgment till payment in full
- 7.The decretal sum to be settled by the 4th Respondent to the exclusion of the 1st, 2nd and 3rd Respondents
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 (as invoked by the parties in an employment dispute)
Relief refused
#Declaration that he was and is still an employee of the 4th Respondent up to 30th November 2023
Court found the resignation was not voluntary but treated it as a repudiation and awarded compensation instead
General damages for defamation of character
The notice to show cause was confidential and not published to third parties, so no defamation was established
Aggravated damages
Claimant did not prove defamation or malice entitling him to aggravated damages
Interest at 30% from date of filing suit
Court awarded interest at court rates from the date of judgment only
Costs
Costs of the suit awarded to the Claimant, payable by the 4th Respondent ('Cost of the suit')
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.
Where an employee resigns impulsively under pressure or humiliation, the employer has a duty to investigate the employee's true intentions before accepting the resignation.
The resignation therefore in the Court's view was not voluntary and the recission did not take away from the Claimant the right to due process or the benefit of the repudiation.
The Court does not discern defamation as the contents of the letter making the accusations was not published to the world or even copied to persons who had no business being in the know.
In the final analysis the Court enters judgment for the Claimant against the 4th Respondent for:
Interest at court rates on the sums in a), b), c) and d) above from the date of judgment till payment in full.
Issues in the judgment
#The judgment states the Memorandum of Claim was filed on 2nd December 2023 but the Response is dated 8th February 2023, which precedes the claim
Case number, cause number and neutral citation are not stated in the judgment excerpt
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Kisang & 3 others (Cause E089 of 2023) [2025] KEELRC 436 (KLR)", Case Analysis (2025). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/436/eng@2025-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.