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ELRCPartially AllowedNot stated in judgment

Walter v Radar Limited (Cause 396 of 2018) [2025] KEELRC 2601 (KLR)

Employment and Labour Relations Court
26 September 2025
3,250 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court said an employee who resigned voluntarily wasn't constructively dismissed, but the employer still had to pay for unproved unused leave days.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from 1st January 2015, sued for a declaration that his departure from employment amounted to illegal and unconstitutional dismissal, compensation of twelve months' salary under section 49 of the Employment Act, unpaid leave and overtime, general damages, costs and interest. He pleaded that after falling ill in October 2015, his request for sick leave was refused and he was compelled to resign by letter dated 1st April 2016, which the respondent accepted; his terminal dues were never paid. The respondent asserted the claimant resigned voluntarily on medical grounds, or alternatively was terminated for poor performance in accordance with section 41, and that all dues were paid. The court framed two agreed issues: whether the claimant was constructively dismissed, and entitlement to the reliefs sought. Applying the definition of constructive dismissal and the principles in Coca Cola East Africa & Central Africa v Maria Kagai Ligaga, the court found no causal link between any employer conduct and the resignation: the medical documents were undated and unproduced to the employer, the final warning related to absconding as shown by the claimant's own apology letter, and five months separated treatment from resignation. The resignation was held voluntary. However, the court found the claimant proved non-payment in lieu of 21 leave days on a balance of probabilities, drawing an adverse inference from the respondent's failure to produce leave and payment records as custodian under section 74. The overtime claim failed as unpleaded special damages. Judgment was entered for Kshs. 25,600 with interest at court rate from filing, plus costs and a 30-day stay.

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 constructively dismissed by the Respondent?
  2. 2.Whether the Claimant is entitled to the prayers sought?

Key legal issues

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01

Whether the claimant was constructively dismissed

Holding

No. The claimant failed to prove a causal link between any employer conduct and his resignation; the resignation was voluntary, based on disclosed ill health.

Reasoning

The court applied the definition of constructive dismissal and the principles in Coca Cola v Ligaga. The medical notes were from October 2015, undated, not a certificate signed by a medical practitioner, and there was no evidence the employer received them. The 30th March 2016 warning was for absconding, evidenced by the claimant's own apology letter, and a similar warning predated the events. With a five-month gap between treatment and resignation, no repudiatory breach or causation was proved on a balance of probabilities.

p. 6
02

Whether the claimant was entitled to payment in lieu of outstanding leave days

Holding

Yes. The claimant proved non-payment of leave on a balance of probabilities; an adverse inference was drawn against the respondent for failing to produce leave and payment records.

Reasoning

The claimant testified he was never granted leave. The respondent asserted payment but produced no payment documents despite being the custodian of leave records under section 74 of the Employment Act, and its HR manager was evasive. The court held nothing would have been easier than producing payment records and made an adverse finding that the claimant was not paid for outstanding leave days, awarding Kshs. 25,600 with interest.

p. 6
03

Whether the claimant was entitled to overtime pay

Holding

No. Overtime is special damages and must be pleaded with specificity; it was not.

Reasoning

The court reiterated that overtime constitutes special damages which must be strictly proved and specifically pleaded. The claimant's pleadings did not specify the hours worked beyond official hours, and the claim was therefore disallowed.

p. 7

Legal principles established

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  • The burden to prove constructive dismissal, including a causal link between the employer's conduct and the employee's resignation, lies on the employee.
  • Terminal dues and leave records are the employer's custodial responsibility; an employer alleging payment must produce evidence of payment.
  • A claim for overtime is a claim in special damages which must be pleaded with specificity and strictly proved.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for payment of 21 annual leave days in lieu in the amount of Kshs. 25,600 with interest at court rate from the date of filing the suit
  2. 2.The claim for constructive dismissal and unfair termination dismissed; resignation held voluntary
  3. 3.The claim for overtime disallowed
  4. 4.Claimant awarded costs of the suit
  5. 5.Stay of execution of 30 days granted

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 jurisdiction under Article 162(2) of the Constitution (implied); claim brought under the Employment Act, 2007

Relief refused

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Declaration that dismissal was illegal, unlawful and unconstitutional

Claimant failed to prove constructive dismissal; resignation was voluntary on medical grounds

p. 6

12 months' salary as compensation for unfair termination (Kshs. 184,020)

The unfair dismissal claim cannot lie absent proof of constructive dismissal

p. 6

General damages for unlawful and wrongful termination

No constructive dismissal established

Overtime pay (part of terminal dues of Kshs. 209,860)

Special damages not specifically pleaded or strictly proved

p. 7

Costs

The claimant is awarded costs of the suit.

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 court finds that the claimant did not prove, on a balance of probabilities, that his resignation amounted to constructive dismissal. The case of unfair dismissal does not lie. The resignation is held to have been voluntary, based on the reason of sickness as disclosed by the claimant.
p. 6Failure to prove constructive dismissal
In conclusion, the court dismissed the claim for constructive dismissal and held the resignation was voluntary based on ill health. The claim for leave was successful and judgment is entered for the claimant against the respondent for payment of 21 annual leave days in lieu for the amount of Kshs. 25600 with interest at the court rate from the date of filing the suit. The claimant is awarded costs of the suit.
p. 7Final orders and disposition
Nothing would have been easier for the respondent than to prove the alleged payment for the leave days as alleged by the production of payment documents. The court made an adverse finding that the claimant was not paid for outstanding leave days.
p. 6Adverse inference against employer as custodian of records
The claim for overtime is a special damages claim and ought to be proved strictly. Any time worked beyond the oficial hours must be pleaded with specificity. That was not done and the claim for overtime is disallowed.
p. 7Special damages pleading for overtime

Issues in the judgment

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minor

The Respondent's pleading contradicts itself on whether the claimant resigned voluntarily or was terminated for poor performance.

material

Internal date inconsistencies: resignation acceptance letter dated 18th April 2016 in the pleadings but '18th April 2019' in the claimant's case summary; illness dated 13th October 2015 in the pleadings but '13th October 2016' in the cross-examination record; and a prior warning letter dated 9th December 2011 although employment commenced 1st January 2015.

minor

The court's reasoning in paragraph 19 anomalously refers to 'the judgment of the trial court' although this is a first-instance claim, not an appeal.

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, "Walter v Radar Limited (Cause 396 of 2018) [2025] KEELRC 2601 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2601/eng@2025-09-26

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