Mutiga v Proto Energy Limited (Cause E939 of 2023) [2025] KEELRC 1747 (KLR)
The bottom line
#A Kenyan court ruled that resigning to avoid a workplace investigation is not constructive dismissal, and employees who quit immediately may owe their employer notice pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
No. The Claimant resigned voluntarily and failed to prove the Respondent created intolerable working conditions amounting to constructive dismissal.
Applying the test in Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga, the Claimant had to show the Respondent created a hostile working environment so intolerable she had no option but to resign. The theft allegations and investigations were legitimate; she resigned after the investigation concluded but before any disciplinary action. Her assertions of being forced to work during maternity leave, of her assistant's promotion, and of exclusion as HoD were unsupported or contradicted by her own contract letter. She therefore failed to discharge the burden on a balance of probabilities.
Whether the Claimant was discriminated against on account of pregnancy
No prima facie case of discrimination was established, so the burden did not shift to the Respondent under Section 5(7) of the Employment Act.
Although the employer bears the burden of disproving discrimination under Section 5(7) of the Employment Act, the Claimant was first required to establish a prima facie case. Her assertion that her assistant replaced her was a bald assertion unsupported by evidence; it was reasonably expected that her duties would be performed by others during maternity leave, and her claim that she worked during leave was at variance with her claim of replacement.
Whether the Respondent's Counterclaim was proved
Partly allowed. The Respondent was entitled to one month's salary in lieu of notice (Kshs 110,000/=) as the Claimant resigned with immediate effect contrary to Clause 10 of the contract, offset by her unpaid salary and leave dues.
Clause 10 of the employment contract required one month's notice or salary in lieu. The Claimant resigned with immediate effect, breaching the clause, so the Respondent could recover one month's notice pay. The letter of 28th November 2022 confirmed final dues of salary for days worked to 19th November 2022 and five accrued leave days; fairness dictated setting these off against the award, leaving Kshs 19,614.46 due to the Respondent.
Legal principles established
#- Constructive dismissal requires that the employee's resignation have a direct causal link with the employer's conduct which may reasonably be described as intolerable
- An employer has the right to carry out investigations into matters arising within the employment relationship, and to commence disciplinary process subject to fair procedure
- Resignation to escape an investigation does not amount to constructive dismissal
- Under Section 5(7) of the Employment Act the employer bears the burden of disproving discrimination, but only after the employee establishes a prima facie case
Court orders
#- 1.The claim is dismissed in its entirety with no orders as to costs
- 2.The Counterclaim is allowed in the sum of Kshs 110,000.00, being one (1) month's salary in lieu of notice
- 3.The Claimant's November salary for 19 days and outstanding leave days (5), totalling Kshs 90,385.54, shall be set off against the sum of Kshs 110,000.00 awarded in the Counterclaim, leaving Kshs 19,614.46 due to the Respondent
- 4.No orders as to costs with respect to the Counterclaim
- 5.The Respondent shall issue the Claimant with a certificate of service in line with Section 51(1) of the Employment Act, within 7 days from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutiga v Proto Energy Limited (Cause E939 of 2023) [2025] KEELRC 1747 (KLR)", Case Analysis (2025). Employment and Labour Relations Cause (Nairobi) — not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1747/eng@2025-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.