Walter v Radar Limited (Cause 396 of 2018) [2025] KEELRC 2601 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was constructively dismissed by the Respondent?
- 2.Whether the Claimant is entitled to the prayers sought?
Key legal issues
#Whether the claimant was constructively dismissed
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.
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.
Whether the claimant was entitled to payment in lieu of outstanding leave days
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.
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.
Whether the claimant was entitled to overtime pay
No. Overtime is special damages and must be pleaded with specificity; it was not.
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.
Legal principles established
#- 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
#- 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.The claim for constructive dismissal and unfair termination dismissed; resignation held voluntary
- 3.The claim for overtime disallowed
- 4.Claimant awarded costs of the suit
- 5.Stay of execution of 30 days granted
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Declaration that dismissal was illegal, unlawful and unconstitutional
Claimant failed to prove constructive dismissal; resignation was voluntary on medical grounds
12 months' salary as compensation for unfair termination (Kshs. 184,020)
The unfair dismissal claim cannot lie absent proof of constructive dismissal
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
Costs
The claimant is awarded costs 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.
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.
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.
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.
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.
Issues in the judgment
#The Respondent's pleading contradicts itself on whether the claimant resigned voluntarily or was terminated for poor performance.
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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.