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ELRCPartially AllowedNot stated in the judgment (Employment and Labour Relations Cause, Eldoret)

Kalenywa v Rivatex East Africa Ltd (Cause 399 of 2018) [2025] KEELRC 508 (KLR)

Employment and Labour Relations Court of Kenya
20 February 2025
5,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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An Eldoret court found the employee resigned voluntarily, not constructively dismissed, but still awarded him unpaid wages, underpayments, leave allowance and a certificate of service.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a trainee and later confirmed as a Machine Operator on permanent and pensionable terms, sued for compensation alleging unfair and unlawful suspension and constructive dismissal. His case was that on 22nd January 2015 his supervisor instructed him to burn waste at the Respondent's premises; the fire escaped but did not destroy property, and he was suspended for one month without pay, after which the Human Resource Manager allegedly required a further month's suspension and told him to resign so he could be paid. He claimed declarations of breach of constitutional rights, leave pay, unpaid salaries, reduced salary, underpayment, notice pay, 12 months' compensation and service gratuity. The Respondent denied that the Claimant was authorised to burn waste, said the fire was unsanctioned and negligent, maintained the suspension was a lawful disciplinary measure, and asserted that the Claimant resigned voluntarily on 2nd March 2015. The court framed two issues: whether the Claimant was constructively terminated or resigned voluntarily, and entitlement to reliefs. Applying the contractual test for constructive dismissal from Coca-Cola East & Central Africa Limited v Maria Kagai Lugaga, the court found the resignation letter expressed no grievance, no evidence showed the suspension was extended or that the Claimant was told to resign, and suspension without pay was not a repudiatory breach; the Claimant therefore resigned voluntarily. Judgment was entered for the Claimant on limited heads: Kshs. 5,000 leave travelling allowance, Kshs. 28,024 unpaid salaries for January and February 2015, Kshs. 16,413.20 underpayments, an order for a certificate of service, and 50% costs to the Claimant.

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's employment was constructively terminated or he voluntarily resigned from employment.
  2. 2.Whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Whether the Claimant was constructively dismissed or resigned voluntarily

Holding

The Claimant was not constructively dismissed; he resigned voluntarily.

Reasoning

Applying the contractual test in Coca-Cola East & Central Africa Limited v Maria Kagai Lugaga, the court examined the resignation letter, which thanked management and gave no complaint of intolerable conditions. There was no evidence that the suspension was extended for another month or that the Claimant was asked to resign to be paid. Suspension without pay was not a repudiatory breach. The burden of proving constructive dismissal lies on the employee and was not discharged.

p. 10
02

Entitlement to leave travelling allowance

Holding

Claimant awarded Kshs. 5,000 being the difference between contractual leave travelling allowance of Kshs. 1,500 per annum and Kshs. 500 actually paid, for five years.

Reasoning

Paragraph 5 of the Offer of Employment provided for Kshs. 1,500 per annum leave travelling allowance, but the leave application forms showed only Kshs. 500 was paid. The court awarded the shortfall for the five years of employment.

p. 11
03

Unpaid salaries for January and February 2015

Holding

Awarded Kshs. 28,024.00 for the two months.

Reasoning

There was no evidence the Claimant was paid for days worked before suspension up to 23rd January 2015, and the Respondent adduced no evidence that its terms permitted suspension without pay. Using the Regulation of Wages (General)(Amendment) Order 2013 rates for a machine operator (Kshs. 14,011.90 monthly), the court awarded two months' salary.

p. 11
04

Underpayment of wages for 18 months

Holding

Awarded Kshs. 16,413.20 under this head.

Reasoning

The Claimant pleaded and testified that from July 2013 he was paid Kshs. 13,100 instead of Kshs. 14,011.89 prescribed under the Regulation of Wages (General)(Amendment) Order 2013, and this evidence was not rebutted by the Respondent.

p. 11

Legal principles established

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  • Pleading constructive dismissal is not enough; the employee must demonstrate through evidence that the resignation was compelled by the employer's conduct amounting to a repudiatory breach.
  • Suspension without pay on disciplinary grounds is not a repudiation of the employment contract.

Court orders

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  1. 1.It is hereby declared that the Claimant resigned voluntarily from the Respondent's employment.
  2. 2.The Claimant is awarded Leave travelling allowance of Kshs. 5,000.
  3. 3.The Claimant is awarded unpaid salaries for January 2015 and February 2015 of Kshs. 28,024.00.
  4. 4.The Claimant is awarded underpayments of Kshs. 16,413.20.
  5. 5.The Respondent is directed to issue the Claimant with a certificate of service.
  6. 6.The Respondent shall meet 50% of the Claimant's costs of this suit as he has been only partly successful.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution of Kenya, 2010 and the Employment Act, 2007 (not expressly quoted in the judgment)

Relief refused

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Declaration that rights to fair remuneration, fair labour practices and fair administrative action were breached

Claimant did not prove breach of rights

p. 10

Declaration that suspension and subsequent termination were unfair and unlawful

Claimant resigned voluntarily, so not entitled to the declaration

p. 10

6 years' annual leave pay

Claimant admitted taking leave; only leave travelling allowance shortfall awarded

p. 10

18 months unlawfully reduced salary

No evidence of particulars of the alleged unlawful reduction

p. 11

3 months' salary as notice pay

Claimant resigned without giving notice and was himself liable to pay in lieu of notice

p. 11

12 months' salary as compensation

Not constructively dismissed, therefore not entitled to compensation

p. 11

Service gratuity pay for 6 years

Gratuity was tied to an employer/employee agreement that was not produced

p. 11

Costs

The Respondent shall meet 50% of the Claimant's costs of this suit as he has been only partly successful.

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.

I therefore find and hold that the Claimant was not constructively dismissed by the Respondent. On the contrary, I find that he resigned voluntarily.
p. 10Constructive dismissal - finding on the evidence
it is not enough for an employee to plead constructive dismissal, that the employee must demonstrate through evidence that his resignation was compelled by the actions of the employer.
p. 10Burden of proof in constructive dismissal
The non-payment of the Claimant's salary on disciplinary grounds is not a repudiation of the Claimant's contract and is not a valid reason for the Claimant to claim compulsion to resignation.
p. 10Suspension without pay - not repudiatory breach
It is hereby declared that the Claimant resigned voluntarily from the Respondent's employment.
p. 11Final orders - declaration
The Respondent shall meet 50% of the Claimant's costs of this suit as he has been only partly successful.
p. 12Final orders - costs

Issues in the judgment

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minor

Resignation letter bears inconsistent dates - typed header '2/03/2025' but signed and dated 02.03.2015; also the court elsewhere records the resignation as 2nd March 2015

minor

Claimant's own figures are inconsistent - pleadings claim salary of Kshs. 13,100 from July 2013 while testimony states salary was reduced to Kshs. 10,020

minor

Underpayment claim period stated inconsistently - submissions say July 2013 to December 2014, while the court's determination refers to July 2013 to December 2015

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, "Kalenywa v Rivatex East Africa Ltd (Cause 399 of 2018) [2025] KEELRC 508 (KLR)", Case Analysis (2025). Not stated in the judgment (Employment and Labour Relations Cause, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/508/eng@2025-02-20

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