https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2374

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** **ELRC CAUSE NO. 4 OF 2019** **LARISSA MANSON HART……………………………………………………………CLAIMANT** **VS** **SCHENKER LIMITED……………………………………………..……………..RESPONDENT** **JUDGMENT** A. INTRODUCTION 1. Every contract of employment rests on a foundation that no clause ever states in so many words: that the parties will treat one another with the minimum measure of trust, courtesy and good faith without which no working relationship can survive. It is a foundation the law protects, not because it is romantic to do so, but because employment is not merely an exchange of labour for wages; it is a relationship of daily dependence in which one party holds considerably more power than the other. When that foundation is eroded, not by a single dramatic act but by a slow accumulation of humiliation, exclusion and unexplained hostility, the employee is often left with a choice that is no choice at all: endure, or leave. The law calls the departure that follows a constructive dismissal, recognising that a resignation extracted by intolerable conduct is not truly voluntary. 2. This is the terrain upon which the present dispute is fought. The Claimant, Larissa Manson Hart, served the Respondent, Schenker Limited, as its Mombasa Branch Manager for very close to four years. She says that within the space of about a year her working life was transformed from one of cordiality and cooperation into one of public shouting, unexplained sidelining, an unwarranted disciplinary warning issued without a hearing, and, finally, a flatly refused request for a routine travel letter for her ten-year-old son's swimming competition, the last of a long line of slights that persuaded her she had no option left but to walk away. The Respondent says the opposite: that its Managing Director's conduct amounted, at worst, to firm management of a difficult operational period occasioned by the Standard Gauge Railway's disruption of its Mombasa freight business, that the Claimant's title and pay were never touched, and that she simply resigned, belatedly dressing up an ordinary departure in the language of constructive dismissal. 3. What makes this case unusual is not only the age of the dispute, commenced in 2019 over events of 2016 and 2017, but the manner of its trial. The Respondent filed a defence, a counterclaim and five witness statements, yet when its turn came to prove any of it, it deferred the hearing of its case four times over more than a year and, in the end, closed its case without calling a single witness. This Court must therefore determine, first, what evidential landscape remains when one party's entire case is reduced to paper never tested by cross-examination, and second, whether what does remain establishes, on a balance of probabilities, that the Claimant was constructively dismissed and, if so, what she is entitled to recover. B. BACKGROUND AND PROCEDURAL HISTORY 1. The Claimant commenced this suit by a Memorandum of Claim filed on 13th March 2019, accompanied by a verifying affidavit and a bundle of documents. The Respondent entered appearance and filed its Memorandum of Reply on the same date, together with a List and Bundle of Documents, and on 10th June 2019 filed the witness statements of its Managing Director, Mr Darren Brown, together with those of four other members of its staff. 2. On 5th July 2023 the Claimant filed an Amended Statement of Claim, revising the computation of her claims. On 26th July 2023 the Respondent filed an Amended Memorandum of Reply which, for the first time, incorporated a Counterclaim against the Claimant for three months' salary in lieu of notice, in the sum of Kshs. 1,527,000, together with a Supplementary List and Bundle of Documents. The Claimant filed her Defence to Counterclaim shortly thereafter, denying the counterclaim in its entirety and pleading, in addition, that it was time-barred under section 90 of the Employment Act and filed without the leave of this Court. The Claimant, for her part, had earlier filed a Further List and Bundle of Documents, together with a comprehensive witness statement, both in September 2022. 3. The Claimant's case proceeded to hearing on 10th February 2025 and 25th June 2025. On both occasions she testified and was cross-examined by counsel for the Respondent. The hearing of the Respondent's case was thereafter set down for 13th October 2025, but did not proceed. It was deferred on four separate occasions between that date and 25th February 2026, on which date the Respondent, for want of any witness, closed its case without calling evidence. 4. Both parties thereafter filed final written submissions, the Claimant's in around April2026, and the Respondent's Final Written Submissions dated 22nd May 2026. It is on this record that the present judgment is rendered. C. THE CLAIMANT'S CASE 1. In her original and Amended Statements of Claim, the Claimant pleaded that she was employed by the Respondent as its Mombasa Branch Manager with effect from 28th February 2013, on a starting gross monthly salary of Kshs. 500,000, later increased to Kshs. 509,000 with effect from September 2016. She reported, from the outset, directly to the Respondent's Managing Director. 2. She averred that she enjoyed a cordial working relationship with the Respondent and its personnel, including the Managing Director, Mr Darren Brown, until early 2016, when Mr Brown began a course of conduct that, she says, progressively mistreated, intimidated, humiliated and demeaned her, principally in front of her colleagues and subordinates. She pleaded two specific instances of public humiliation during management conference calls, on 8th March 2016 and 14th September 2016, when Mr Brown is said to have shouted at her and embarrassed her without cause. 3. She further pleaded that, without notice or justification, the Respondent altered the Mombasa branch's reporting structure so that she, while remaining Branch Manager, became answerable to another employee rather than to the Managing Director directly, a change she characterised as an unlawful demotion effected in breach of her contract. Her attempts to have the change explained or reconsidered were, she says, ignored. 4. She pleaded that matters escalated in October 2016 over the handling of a shipment fora client, Ingredion, in the course of which the Managing Director's emails to her, copied to her subordinates, grew increasingly critical in tone, culminating in a Final Warning Letter dated 24th October 2016 accusing her of gross insubordination, the first disciplinary communication of any kind she had received in over three years of unblemished service. She protested the letter in writing on 31st October and again, at length, on 9th November 2016, and on 10th November 2016 addressed an Open Letter to the Managing Director, copied to nine members of the Schenker Group's regional and global management, setting out a detailed history of her grievances and inviting intervention. None of the addressees intervened. 5. The final precipitating event, on her account, arose in February 2017, when the Respondent declined, without adequate explanation, to issue her a letter confirming her employment to the South African High Commission, a document she needed to obtain a visa to accompany her ten-year-old son to a national swimming competition in South Africa. Considering that the cumulative effect of this conduct had rendered her continued employment untenable, she resigned by letter dated 28th February 2017, expressly characterising her departure as a constructive dismissal. 6. On these facts she claimed: three months' salary in lieu of notice; compensation for unfair constructive dismissal equivalent to twelve months' salary; payment for 17.4950 days of untaken annual leave; underpaid salary of Kshs. 90,000 for the period September 2016 to February 2017; a bonus for the year 2016; a certificate of service; exemplary and general damages; costs; and interest. 7. In her witness statement, filed in September 2022, the Claimant elaborated on each of these events and produced in support a body of correspondence, including that relating to the two 2016 humiliation incidents, the restructuring emails, the Final Warning Letter and her responses to it, her Open Letter of 10th November 2016, her resignation letter, the demand letter issued by her advocates on 3rd March 2017, and the Respondent's responses of 1st March 2017 (through the Managing Director) and 10th March 2017 (through its advocates), both of which characterised her departure as a voluntary resignation. She testified and was cross-examined on this evidence on 10th February 2025 and again on 25th June 2025. D. THE RESPONDENT'S CASE AND THE COUNTERCLAIM 1. The Respondent's position, as pleaded in its Memorandum of Reply and, later, its Amended Memorandum of Reply and Counterclaim, was a near-total denial. It admitted the Claimant's dates of service, her designation and the salary increase, but denied that the Managing Director had ever mistreated, humiliated or embarrassed her, characterising such allegations as calculated to taint his image. 2. On the restructuring, the Respondent's position was that it was compelled by legitimate business necessity, the Standard Gauge Railway having disrupted its Mombasa freight operations, to re-organise its reporting lines; that the Claimant was informed of a new organogram by an email in mid-2016 requiring her to report to a Product/Sea Freight Manager senior to her; that she was required to acknowledge the change and failed to do so, itself said to amount to insubordination; and that, in any event, her title, grade and remuneration were untouched, so that no demotion occurred. It relied on clause 1 of her Contract of Employment, which describes her designation as "Branch Manager – Mombasa (or on such other capacity as the company may determine from time to time)," as express contractual authority for the change. 3. On the Ingredion episode, the Respondent maintained that the Final Warning Letter was warranted by the Claimant's conduct, and that her response of 31st October 2016 was answered on 3rd November 2016 confirming the warning's validity. On the visa letter, it took the position that no clause of the Contract of Employment obliged it to furnish such a letter and that the Claimant required no such document to travel. It maintained that she resigned "on her own volition," in breach of the three months' notice required by her Contract of Employment, and it counterclaimed for three months' gross salary, Kshs.1,527,000, said to be owed by her in consequence. 4. The Claimant's Defence to Counterclaim, filed in 2023, denied the counterclaim in its entirety, pleaded that it was filed more than six years after the cause of action said to have accrued on 28th February 2017 and was, in consequence, time-barred under section 90 of the Employment Act, and pleaded further that it was filed without the leave of the Court. 5. The Respondent filed the witness statements of Mr Darren Brown, its Managing Director, and of four other members of staff, together with a List and Bundle of Documents filed on 13th March 2019 and a Supplementary List and Bundle of Documents filed on 26th July 2023. None of these five witnesses was, in the event, called to testify. As already recorded, the Respondent's case was set down for hearing on 13th October 2025, deferred on four occasions, and closed on 25th February 2026 without any witness being called. E. THE CLAIMANT'S SUBMISSIONS 1. Counsel for the Claimant submitted, first, that the Respondent's five witness statements, none of whose makers testified or was subjected to cross-examination, hold no probative value and should be expunged from the record, relying on this Court's decision in Chepkemoi v Maasai Mara University (Cause E001 of 2020) [2024] KEELRC 774 (KLR), where it was held that "a witness statement filed does not and cannot of itself amount to the evidence of the intended witness unless so admitted by consent and with the concurrence of the court," and that "documents filed in court do not become evidence unless produced by consent or through a competent witness." 2. Counsel submitted, further, that because no exhibits were produced by the Respondent and no consent was recorded for the production of its documents, the entirety of the Respondent's List and Supplementary List of Documents should likewise be expunged, citing South Nyanza Sugar Co. Ltd v Mary A. Mwita & Another [2018] eKLR and Kenneth Nyaga Mwige v Austin Kiguta & 2 Others [2015] eKLR, for the proposition that a document merely marked for identification, and never formally produced and proved by a sponsoring witness, "would be hearsay, untested and unauthenticated" and carries no evidential weight. 3. It was submitted that, in consequence, the Claimant's evidence stands uncontroverted and unchallenged, and that this Court should, on that basis alone, allow the claim as prayed. 23. Without prejudice to that submission, counsel submitted in the alternative that the Claimant discharged the burden of proving constructive dismissal on a balance of probabilities notwithstanding cross-examination, her account being "unshaken" throughout. Reliance was placed on Nathan Ogada Atiagaga v David Engineering Ltd [2015] eKLR, for the proposition that "constructive dismissal occurs when an employee resigns because their employer's behaviour has become so intolerable or made life so difficult that the employee has no choice but to resign," and on Kenga v Petrocity Enterprises Limited (Cause E051 of 2022) [2025] KEELRC 2495 (KLR), said to present facts "all-four-square" with the present case, in which this Court held that the cumulative effect of an employer's past conduct may found a finding of constructive dismissal without the need to identify a single breached term, and that the Managing Director's failure to testify there left the claimant's evidence unchallenged. Counsel further relied on the two-limb test articulated by the Court of Appeal in Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR, namely the "unreasonableness test" and the "contractual test." 24. On this basis, the Claimant urged the Court to grant the reliefs sought in paragraph 11 of the Amended Statement of Claim in their entirety. F. THE RESPONDENT'S SUBMISSIONS 1. Counsel for the Respondent, while conceding that the Respondent's own five witness statements carry no probative value in the absence of viva voce testimony, and conceding further that documents on the Respondent's Lists not produced through a witness likewise carry no independent weight, submitted that this concession was subject to an important qualification: that the Claimant herself, in the course of her own testimony, produced, adopted and relied upon numerous documents drawn from the Respondent's Lists, including the Contract of Employment, the Final Warning Letter, the correspondence on the restructuring, her payslips for August 2016 to February 2017, and the Respondent's Grievance Procedure, and that a party cannot approbate and reprobate by relying on a document to build her case while disowning its evidential status. 2. It was submitted that the correspondence upon which the Claimant relies to establish the substance of her allegations, being electronic mail, required a certificate under section 106B(4) of the Evidence Act, and that in its absence this Court, applying the Court of Appeal's decision in County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others [2015] KECA 397 (KLR), cannot treat those communications as independently authenticated records of the facts asserted. 3. It was submitted that the principle that uncontroverted evidence must be accepted, as applied in Nathan Ogada v David Engineering (supra), has no application here because the Claimant was cross-examined at length on two separate hearing dates, and that Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR) establishes that a defendant's failure to call evidence does not, without more, entitle a plaintiff to judgment; the Court must first be satisfied that the plaintiff's own evidence is "credible and believable" and capable of standing on its own. Reliance was also placed on Karugi & Another v Kabiya & 3 Others [1987] KLR 347 for the proposition that the burden on a plaintiff remains throughout the trial. 4. It was submitted, further, that the Claimant, being the sole witness of her own case, called no one to corroborate incidents that occurred in the presence of others, including the Human Resources Manager who is said to have disapproved of the Final Warning Letter, and that under section 112 of the Evidence Act an adverse inference should be drawn from the non-production of witnesses whose evidence would have been material and was reasonably available. 5. Reliance was placed on section 47(5) of the Employment Act for the proposition that the burden of proving unfair or wrongful termination rests throughout on the employee, and that this burden does not shift merely because the Respondent elected not to call evidence, citing this Court's decision in Herbert Wafula Waswa v Kenya Wildlife Service [2020] KEELRC 78 (KLR) (Ndolo J), a decision of this Court sitting at Mombasa in materially similar circumstances. 6. On the merits, the Respondent relied on the five-part test for constructive dismissal articulated by the Court of Appeal in Watuku v Industrial & Commercial Development Corporation (Civil Appeal E206 of 2022) [2025] KECA 768 (KLR), and submitted that the twelve-month gap between the first alleged incident, in March 2016, and the resignation, in February 2017, was fatal to causation on the authority of that case, and that the Claimant's continued employment for a further three months after her Open Letter of 10th November 2016, in which she acknowledged in writing that she understood the personal risk of her escalation, amounted to an affirmation of the contract defeating any claim of constructive dismissal, on the authority of Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga (supra). It was submitted that the restructuring fell within the express "such other capacity" term of the Contract of Employment; that the Final Warning Letter, whatever its merits, was a disciplinary act and not one calculated to drive the Claimant from her post; that no contractual right to a visa letter existed; and that the Claimant's failure to invoke the Respondent's Grievance Procedure at any point in the twelve months in question defeats the proposition that no viable internal remedy remained to her. Kenga v Petrocity Enterprises Limited (supra) was distinguished on the footing that the claimant there called a corroborating witness and the respondent's sole witness conceded ignorance of the material facts, whereas here the Claimant called no corroborating witness of her own and was fully cross-examined. 7. On reliefs, it was submitted that notice pay and compensation under section 49 are both parasitic on a finding of constructive dismissal and fall away if that finding is not made; that the Claimant's claim for 17.4950 days of leave is displaced by a "Leave Balance" payroll record said to show an outstanding balance of only 6.99 days; that the underpayment claim of Kshs. 90,000 is refuted by payslips showing a consistent gross salary of Kshs. 509,000; that the 2016 bonus claim is defeated by provisions of the Respondent's Employment Manual said to make any incentive discretionary, conditional on continued employment at the date of payment, and reducible where a written warning is on record; that a certificate of service was already issued; and that exemplary and general damages have no place in a claim governed exclusively by section 49 of the Employment Act, and are, in any event, unsupported on the facts. The Respondent prayed that the claim be dismissed with costs. G. ISSUES FOR DETERMINATION 32. Having considered the pleadings, the evidence on record and the rival submissions, the following issues fall for determination: 1. What is the evidential landscape properly before this Court, having regard to the Respondent's decision not to call any witness? 2. What is the nature of a counterclaim, and what is the effect of the Respondent's failure to call evidence upon the counterclaim it pleaded? 3. Whether the Claimant's electronic documentary evidence is rendered inadmissible for want of a certificate under section 106B(4) of the Evidence Act. 4. Whether the absence of corroborating witnesses undermines the Claimant's case, and whether the Respondent's silence in any way lightens the burden resting upon her. 5. Whether section 47(5) of the Employment Act applies to a claim of constructive dismissal. 6. Whether, on the evidence, the Claimant was constructively dismissed from her employment. 7. Whether the Claimant is entitled to the reliefs sought, and if so, in what amounts. 8. Whether the counterclaim is sustainable. 9. Who bears the costs of the claim and of the counterclaim? H. ANALYSIS AND DETERMINATION (i) The evidential landscape 1. I begin with what is, happily, largely common ground. Both counsel agree, correctly, that a witness statement filed but never adopted through viva voce testimony is not evidence: Chepkemoi v Maasai Mara University (supra). I so hold. The witness statements of Mr Darren Brown, and of the four other persons named on the Respondent's list, are expunged from the record. They were never tested, and this Court will place no reliance on their contents. 2. Both counsel agree, too, that a document that is merely listed, annexed or marked for identification, but never formally produced and proved through a witness competent to speak to its authenticity and relevance, does not thereby become part of the evidential record: South Nyanza Sugar Co. Ltd v Mary A. Mwita & Another (supra); Kenneth Nyaga Mwige v Austin Kiguta & 2 Others (supra). I accept and apply that principle. The Respondent's original List and Bundle of Documents filed on 13th March 2019, and its Supplementary List and Bundle of Documents filed on 26th July 2023, were never produced through any witness of the Respondent's. Save as set out in the following paragraph, they are not part of the evidential record of this cause. 3. That qualification matters, and the Respondent's submissions on it are correct. The record shows that the Claimant, in the course of her own testimony, referred to, produced and relied upon a number of documents that happen also to appear on the Respondent's lists, among them her Contract of Employment, the Final Warning Letter of 24th October 2016, the correspondence chain touching the restructuring of September 2016, her payslips, and the Respondent's Grievance Procedure. A document does not become inadmissible merely because of the party on whose list it first appeared; what matters is whether it was produced and proved in evidence, by whom, and for what purpose. Documents the Claimant herself adduced as part of her case, and on which she was cross-examined, are properly before this Court, regardless of their provenance. She cannot, of course, be permitted to build her case upon them and then be heard to say they are not evidence; nor could the Respondent, having elected not to call the maker of a document, simply appropriate it wholesale for propositions the Claimant never advanced through it. The documents so produced by the Claimant stand in evidence for what they say, and for no more. (ii) The nature of a counterclaim, and the consequence of the Respondent's silence on it 36. It bears emphasis that the Respondent did not confine itself to a defence. It pleaded, in addition, an Amended Memorandum of Reply and Counterclaim, seeking an affirmative order that the Claimant pay it Kshs. 1,527,000 as three months' salary in lieu of notice. A counterclaim of this kind is not a mere shield; it is a sword. It is, in substance and in the practice of our courts, treated as a cross-suit brought by the defendant against the plaintiff within the same proceedings, attracting the plaintiff's ordinary evidential and procedural incidents, including costs, as though it were an independent action. The consequence that follows is straightforward: a party who counterclaims assumes, in respect of that counterclaim, precisely the burden that a plaintiff bears in an ordinary suit, namely to prove the counterclaim on a balance of probabilities by credible evidence. 1. The Respondent, having pleaded a counterclaim, filed witness statements to support it and duly listed the Contract of Employment as the document said to found the Claimant's obligation to give three months' notice. It nonetheless failed, over four deferments spanning more than a year, to bring any witness to establish that pleaded case. The effect of that failure, for purposes of the counterclaim, mirrors precisely the effect already discussed for the substantive defence: the counterclaim, however elaborately pleaded, remains a mere averment on paper. A pleading is not evidence of the facts it asserts; it merely defines the boundaries within which evidence, if led, may be received. The Respondent led none. Its counterclaim, like its defence, was never proved and cannot succeed on the merits, wholly independent of the limitation objection considered later in this judgment. (iii) The burden of proof: the Claimant's evidence assessed on its own footing 2. It does not, however, follow from the Respondent's failure to call evidence that judgment must automatically be entered for the Claimant. That proposition, attractive as it might appear at first blush, was firmly rejected by the Court of Appeal in Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR), where the Court held that "the suggestion... that in all and sundry civil cases the failure by the defendant to adduce evidence in support of his defence means that the plaintiff's case is proved on a balance of probabilities cannot possibly be correct," and that a court "must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant" before concluding that the case is proved by reason of the defendant's silence. The burden borne by a claimant remains hers throughout the trial: Karugi & Another v Kabiya & 3 Others [1987] KLR 347. 3. I have, in consequence, scrutinised the Claimant's evidence on its own footing, mindful that she was twice subjected to cross-examination, on 10th February 2025 and 25th June 2025. Having done so, I find her testimony to be credible and believable, and capable, without more, of establishing her case. It is internally consistent across her pleadings, her witness statement and her viva voce evidence. It is corroborated at every material point by contemporaneous documents that she herself produced and that were never shown, in cross-examination or otherwise, to be forgeries, alterations, or anything other than what they purport to be: the Final Warning Letter, her written protests to it, her Open Letter of 10th November 2016 copied to nine members of the Group's regional and international management, her resignation letter, and the Respondent's own responses of 1st and 10th March 2017. Nothing in the record suggests that her account was, to use the language of Charterhouse Bank, "thoroughly discredited" by cross-examination; on the contrary, the Respondent's own final submissions are built substantially upon admissions said to be found within the Claimant's own documents and testimony, an approach that itself confirms rather than undermines the coherence of her account. I find, applying Charterhouse Bank and Karugi, that the Claimant has discharged the evidential burden resting upon her, independently of any consequence flowing from the Respondent's silence, a matter to which I return when applying the law of constructive dismissal to the facts. (iv) Section 106B of the Evidence Act: the electronic evidence objection 1. The Respondent's submissions on this point, though they correctly recite the law, are, inmy view, unconvincing in the circumstances of this case, and I decline to hold that the Claimant's documentary evidence is inadmissible on this ground. 2. Section 106 B(4) of the Evidence Act does impose, as the Respondent submits, a certificate requirement for electronic records, and the Court of Appeal held in County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others [2015] KECA 397 (KLR) that the requirement is mandatory and not to be waived lightly, given the real risk of manipulation of electronic records. I do not depart from that authority. What defeats the Respondent's argument is not the correctness of the legal proposition but its application to a trial that has already run its full course. 3. The Claimant produced the impugned correspondence in evidence as her own documentary evidence, in the ordinary course of her testimony. The record does not disclose that the Respondent's counsel raised any objection to the production of that correspondence at the time it was tendered. Instead, the Respondent's counsel proceeded to cross-examine the Claimant upon the very documents whose admissibility is now impugned. It is impermissible, in my view, for a party to sit through the production of documentary evidence without demur, to test that evidence by cross-examination on its contents, and then, once the evidence is closed and the moment for curing any defect in production has passed, to resile at the submissions stage and ask this Court to treat the same evidence as though it had never been received. That is not a legitimate exercise of the right to object to inadmissible evidence; it is, in substance, an attempt to have the advantage of cross-examining upon evidence while denying the Claimant any opportunity to make good a procedural deficiency that, if genuinely persisted in, ought to have been raised when it could still have been remedied. Kenyan courts have long recognised that a party cannot approbate and reprobate, accepting the benefit of a state of affairs while disowning its burden: see, by analogy, the discussion of that doctrine by the Supreme Court in National Bank of Kenya Limited v Anaj Warehousing Limited [2015] eKLR. A party that examines a witness at length upon a document, without objection, approbates its use in evidence; it cannot then reprobate that same use once the tactical advantage of cross-examination has been secured. 4. I am fortified in this view by the fact that the Respondent's own final submissions rely, extensively and to significant tactical advantage, upon the very same correspondence it now says ought to be treated as unauthenticated, most notably the Claimant's Open Letter of 10th November 2016, which the Respondent deploys as an admission said to be fatal to her claim. A party cannot invite this Court to give decisive weight to a document for one purpose while urging that the same document be given no weight at all for another. I find the correspondence produced and adopted by the Claimant, without objection and subject to full cross-examination, admissible and in evidence. (v) Corroboration: was any required? 1. The Respondent submits that the Claimant's failure to call any of her former colleagues, the conference call participants, or the Human Resources Manager said to have disapproved of the Final Warning Letter, invites an adverse inference under section 112 of the Evidence Act and diminishes the credibility of her account. I do not accept this submission. 2. It is settled law, and was not disputed by either party, that no particular number of witnesses is required to prove any fact: section 143 of the Evidence Act. Whether an adverse inference should be drawn from the non-production of a witness turns on whether that witness's evidence was genuinely necessary to establish a fact otherwise unproved, and whether the witness was one whose evidence was, in a real sense, central to the case. I see no evidence in this record that required corroboration to be accepted. The primary facts upon which the Claimant's case turns, namely that the reporting structure was altered, that the Final Warning Letter was issued, that her written protests went unanswered save to confirm the warning's validity, that her Open Letter drew no response from any of the nine executives it was copied to, that her requests for a visa letter were refused, and that she resigned in the terms recorded in her letter of 28th February 2017, are all established by contemporaneous documents that speak for themselves and were not shown to be inauthentic. Corroboration exists precisely to guard against the risk that a fact depends solely on the uncorroborated word of an interested party; here, every material fact is independently anchored in the documentary record. 3. Nor is there a witness "central" to the Claimant's case whom she declined to call. The situation might have been different, for instance, had the crux of her case turned on an oral conversation, disputed in its very occurrence, to which only she and one absent colleague were privy, with no document capable of anchoring either version, as was, in substance, the position this Court considered in Kenga v Petrocity Enterprises Limited (supra), where corroborating oral testimony went to establish contemporaneous distress that no document could capture. That is not this case. The two humiliation incidents of 8th March and 14th September 2016 are referenced and substantially corroborated by the Claimant's own contemporaneous written protests, which the Respondent never answered by denial at the time; the restructuring and its resistance are documented in an unbroken chain of emails; the Final Warning Letter and its context are wholly documentary; and the visa letter refusal and resignation are, self-evidently, matters of correspondence. I am accordingly not persuaded that any adverse inference should be drawn from the Claimant's election to rely on her own testimony, read together with the documentary record, rather than calling additional witnesses to matters the record already speaks to. 4. I turn to the authorities the Respondent cites on this point, Charterhouse Bank Ltd vKamau and Karugi & Another v Kabiya & 3 Others. Properly read, neither case advances the corroboration argument. Both stand for the distinct proposition that a defendant's silence does not, without more, prove a plaintiff's case; neither holds that a claimant's own uncorroborated but documentarily supported testimony is for that reason alone insufficient. I have already found, applying those very authorities, that the Claimant's evidence is credible and believable on its own footing. The corroboration argument adds nothing further to displace that finding. (vi) Section 47(5) of the Employment Act and constructive dismissal 1. The Respondent places considerable reliance on section 47(5) of the Employment Act, which provides that "the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination... shall rest on the employer," and on Herbert Wafula Waswa v Kenya Wildlife Service [2020] KEELRC 78 (KLR), a decision applying that provision in a constructive dismissal claim where the respondent called no witnesses. 2. I make one clarifying observation on this point, though it does not, in the result, alter the outcome. Constructive dismissal, by its very nature, is a legal construct developed through judicial precedent rather than a species of "termination" contemplated by the bifurcated burden that section 47(5) creates. The provision presupposes an act of termination by the employer whose "grounds" the employer must then justify. In a case of constructive dismissal, however, it is the employee, not the employer, who brings the contract to an end; there is no employer-initiated termination whose grounds fall to be justified, because the employer's position, almost invariably, is precisely that it never terminated the contract at all. Section 47(5)'s shifting of a justificatory burden onto the employer accordingly has no ready application to a case of this kind. What section 47(5) does confirm, uncontroversially, is that the burden of proving the underlying facts said to amount to unfair or wrongful termination rests on the employee; but that proposition is, in truth, no more than the ordinary civil burden on a claimant, and is more precisely and completely addressed by the doctrine of constructive dismissal itself, discussed in the following sections, than by section 47(5). To the extent the Respondent's authorities invoke section 47(5)'s architecture of shifting burdens as the operative framework for this dispute, I find them, with respect, not particularly helpful; the more apposite framework is the doctrine of constructive dismissal as elaborated by the Court of Appeal, under which, as will be seen, the entire burden nonetheless remains, throughout, on the Claimant. (vii) What is constructive dismissal? 1. Constructive dismissal is not a term appearing, ipso facto, in the text of the Employment Act, 2007. It is a doctrine of judicial construction, imported into our labour jurisprudence to address the reality that an employer can engineer an employee's departure just as effectively by conduct as by a signed letter of termination, and that the law would fail in its purpose if it allowed an employer to escape the consequences of an unfair dismissal merely by ensuring that the employee, rather than the employer, spoke the words of departure. 2. This Court, in Nathan Ogada Atiagaga v David Engineering Ltd [2015] eKLR, described the doctrine thus: "Constructive dismissal occurs when an employee resigns because their employer's behaviour has become so intolerable or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination." The Court of Appeal, in Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR, articulated the doctrine by way of two limbs: "the unreasonableness test, where conduct is so unreasonable that the employee cannot fairly be expected to put up with it," and "the contractual test, where conduct constitutes a repudiatory breach going to the root of the contract." 3. It is a doctrine of equally long standing in comparable common law jurisdictions, and I derive assistance from two such authorities. In South Africa, the Labour Appeal Court, in Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC), held that the enquiry is "whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy it, or seriously damage the relationship of confidence and trust between employer and employee," adding that "it is not necessary to show that the employer intended any repudiation of the contract: the Court's function is to look at the employer's conduct as a whole, and determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it." That formulation, with its emphasis on the objective effect of conduct rather than the employer's subjective intention, sits comfortably alongside our own jurisprudence and is one I gratefully adopt as a statement of principle. 4. In Canada, the Supreme Court, in Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, restated the applicable test in two branches: first, whether the employer, by a single unilateral act, breached an express or implied essential term of the contract, assessed objectively by asking whether, at the time the breach occurred, a reasonable person in the shoes of the employee would have felt that the essential terms of the contract were being substantially changed; and, second and independently, whether the employer's conduct, considered cumulatively and in its entirety, demonstrates that the employer no longer intended to be bound by the contract, such that "a reasonable person would conclude that the employer no longer intended to be bound by the terms of the contract," without any need to identify a single decisive act of repudiation. Both formulations, from South Africa and Canada respectively, illuminate rather than displace the two-limb Kenyan test in Coca-Cola v Ligaga, and I apply them here as persuasive, harmonious authority. 5. The non-exhaustive nature of conduct capable of grounding constructive dismissal54. It would be an error, and one this Court is astute to avoid, to treat the categories of conduct capable of amounting to constructive dismissal as closed or exhaustively catalogued by precedent. The doctrine is, by its nature, fact-sensitive; the ingenuity of employers determined to make life difficult for an employee, whether by design or by the accumulation of ordinary managerial carelessness, is not so easily reduced to a fixed list in advance. Learned authors on the law of employment, among them the well-regarded text Selwyn's Law of Employment, observe that the circumstances capable of constituting a repudiatory breach are legion and cannot be confined to any closed list, ranging from a unilateral cut in pay or status, through a pattern of belittling behaviour, to unjustified disciplinary action or a single act so serious that it destroys the relationship outright. Kenyan courts, including this Court in Kenga v Petrocity Enterprises Limited (supra), have likewise declined to confine the doctrine to any fixed catalogue of triggering events, holding that it suffices "to find that the employer's treatment of the employee made continued employment intolerable," whatever specific form that treatment took. I proceed on that footing. 6. The ingredients of constructive dismissal 55. Drawing together the guidance of our own courts, I take the ingredients of constructive dismissal, as borne out by judicial precedent, to be: (a) identification of the fundamental or essential terms, express or implied, of the contract of employment, among which our courts have long recognised the implied mutual obligation of trust and confidence; (b) conduct by the employer that either breaches those fundamental terms in a manner going to the root of the contract, or is otherwise so unreasonable that the employee cannot fairly be expected to tolerate it; (c) an objective assessment of that conduct, judged not by the employer's professed intentions but by its reasonably foreseeable effect on the employment relationship; (d) a genuine causal link between the conduct complained of and the employee's decision to resign; and (e) resignation within a reasonable time, without such affirmation of the contract, by continued unqualified performance, as would signal acceptance of the altered terms. This formulation draws on, and is not in conflict with, the five considerations identified by the Court of Appeal in Watuku v Industrial & Commercial Development Corporation (supra), and the two-limb test in Coca-Cola v Ligaga (supra). (x) Cumulative conduct or a single act 56. It is important to record, and I so hold, that the conduct capable of attracting a finding of constructive dismissal need not be a single, isolated act. It may be precisely that: one act, so serious in itself, that it destroys the relationship outright. Equally, it may be a course of conduct, no one incident of which would, viewed in isolation, justify resignation, but whose cumulative weight over time achieves the same destructive effect. This is not a novel proposition; it finds clear support in Potter v New Brunswick Legal Aid Services Commission (supra), where the Supreme Court of Canada expressly recognised these as two independent bases for a finding of constructive dismissal, a single repudiatory act on the one hand, and a course of conduct demonstrating an intention no longer to be bound on the other. Where the claim rests on a cumulative course of conduct, the final incident relied upon as the immediate trigger for resignation need not, by itself, be especially grave; it is properly understood as the last of a series, the proverbial last straw, whose true significance can only be appreciated against the pattern that preceded it. (xi) Applying the ingredients to the facts of this case 1. I turn, then, to examine, elaborately and critically, the specific conduct of which the Claimant complains, both individually and cumulatively, against the ingredients set out above. 2. The public humiliation during the conference calls of 8th March 2016 and 14thSeptember 2016. These incidents are attested to in the Claimant's own contemporaneous correspondence, most notably her Open Letter of 10th November 2016, in which she recounts, in specific and unembellished detail, being shouted at and told off "in front of all my colleagues for no reason whatsoever." Nothing in the record contradicts this account; indeed, no witness of the Respondent's was ever tendered to dispute it. Standing alone, and separated as they were by several months from the resignation, these incidents might not, without more, cross the threshold; but they are not to be viewed in isolation. They mark the beginning of a documented deterioration and form the first thread in the cumulative pattern I address below. 3. The restructuring of the reporting line. I do not accept the Respondent's characterisation of this change as an innocuous exercise of the "such other capacity" clause in the Claimant's Contract of Employment. That clause, read in its ordinary and natural sense, contemplates a change of designation or role, not a wholesale alteration of the seniority hierarchy so as to make a Branch Manager, engaged on the express footing that she would report to the Managing Director, instead answerable to a more junior colleague, without consultation, without an accompanying revision of her job description, and without any explanation offered when she sought one. The manner of its implementation, effected unilaterally and defended thereafter only by silence in the face of her repeated requests for engagement, is itself telling. Whether or not the underlying commercial rationale, the impact of the Standard Gauge Railway on the Respondent's Mombasa freight business, was legitimate, an employer does not immunise itself from a claim of constructive dismissal merely by having a sound commercial reason for a restructuring; it must still implement that restructuring in a manner consistent with its implied obligation of fair dealing towards the affected employee. Here it did not. I find that this episode, considered together with the Respondent's sustained refusal to engage with the Claimant's repeated requests to discuss it, constitutes a significant erosion of the trust and confidence that the parties' relationship required. 4. The Final Warning Letter of 24th October 2016. I have carefully considered the Claimant's detailed rebuttal of 9th November 2016, which sets out, hour by hour, her responses to the Managing Director's emails on the Ingredion shipment and demonstrates that she answered every message put to her within a reasonable time. What is most telling, however, is not the underlying merits of the Ingredion dispute, on which I make no definitive finding, but the manner in which the warning was issued: without any prior warning of any kind in over three years of service, without an opportunity for the Claimant to be heard before its issuance, delivered to her, on her own account, through a colleague rather than directly, and followed up from Nairobi Head Office through that same colleague rather than with her. An employer is, of course, entitled to enforce reasonable standards of performance; but the issuance of a first and immediately "final" disciplinary sanction, without any semblance of a fair hearing, on an employee of unblemished record, is conduct a reasonable employee is not bound to shrug off as ordinary management. Considered together with the absence of any process by which she could challenge it other than by unanswered correspondence, I find that this episode too weighs materially in the cumulative assessment. 5. The refusal of the visa support letter in February 2017. Standing entirely alone, a single refusal to furnish an administrative letter to which the Claimant enjoyed no strict contractual entitlement might not found a claim of constructive dismissal. But conduct is rarely to be assessed in a vacuum, and this refusal did not arise in one. It arrived at the end of a year in which every preceding request the Claimant had made for engagement, explanation or reconsideration had been met with silence or rebuff. Viewed against that backdrop, the refusal functioned as confirmation, rather than the origin, of what the Claimant had already come to understand: that the Respondent had no intention of addressing her grievances. It was, properly understood, the last straw, not because it was itself the gravest of the acts complained of, but because it was the final demonstration that nothing had changed and nothing would. 6. Assessed cumulatively, and I am satisfied that cumulative assessment is the correct approach on these facts, I find that the conduct described above, the two public humiliations, the unilateral and unexplained alteration of the Claimant's reporting line in a manner inconsistent with her seniority and contract, the issuance of a first and final disciplinary sanction without a hearing, the studied silence in the face of her repeated and increasingly urgent written appeals, including an appeal copied to nine senior regional and international executives that drew not a single response, and finally the refusal of the visa letter, together crossed the threshold identified in Coca-Cola v Ligaga, Pretoria Society v Loots, and Potter v New Brunswick Legal Aid Services Commission. Judged objectively, and without any need to find that the Managing Director set out with a deliberate design to force the Claimant's resignation, the effect of this conduct, viewed as a whole, was such that the Claimant could not reasonably have been expected to continue enduring it. I find that the Claimant has established, on a balance of probabilities, each of the ingredients of constructive dismissal identified earlier in this judgment, and I so hold. She was constructively dismissed from her employment with the Respondent on 28th February 2017. (xii) Delay and acquiescence 1. The Respondent makes much of the passage of time between the first incident, in March2016, and the resignation, in February 2017, submitting that this gap defeats causation on the authority of Watuku v Industrial & Commercial Development Corporation (supra), where a lengthy gap between an earlier act and resignation was found "far removed" and "remote." I do not accept that the present case is comparable, nor do I find that the Claimant acquiesced in, or affirmed, the conduct of which she now complains. 2. The record demonstrates, in granular and contemporaneous detail, that the Claimant did not remain passive during the period in question. She protested the restructuring in writing within weeks of learning of it. She protested the Final Warning Letter twice, in detail, within a fortnight of its issue. She escalated her concerns, formally, to the Respondent's Regional Human Resources office in December 2016. She addressed a lengthy Open Letter to nine members of the Group's senior regional and global management in November 2016, in the plain hope, expressly recorded in that very letter, that intervention from outside the country office might succeed where internal engagement had failed. That is not the conduct of an employee who has resigned herself to her treatment; it is the conduct of an employee who took real and repeated steps, over a period of months, to have the matter resolved amicably before concluding, only when every one of those efforts had failed, that resignation was her only remaining option. The passage of time between March 2016 and February 2017 is not, on this record, a period of quiescence; it is a period actively and visibly occupied by the Claimant's sustained, good-faith attempts at internal resolution. Where an employee spends the interval between an employer's conduct and her eventual resignation in genuine and reasonably persistent efforts to have matters resolved, rather than simply carrying on as though nothing had occurred, the delay does not operate against her; if anything, it speaks in her favour, and demonstrates the very reluctance to abandon the employment relationship that the law expects of an employee before it will countenance a claim of constructive dismissal. 3. I likewise reject the submission that the Claimant's Open Letter of 10th November 2016 amounts to a calculated affirmation of the contract. Read fairly and in its entirety, that letter is not the record of an employee content to remain regardless of consequence; it is an anguished, closely reasoned appeal for help, addressed to the highest levels of the organisation precisely because internal, country-level channels had already failed her. Her acknowledgment that raising the matter beyond the Kenya office carried personal risk to her position is not an admission that she was prepared to tolerate the conduct indefinitely; it is evidence of the very real and reasonable fear an employee in her position would harbour, and it is, if anything, testimony to her courage in pursuing the complaint despite that fear. That none of the nine executives copied on that letter troubled to respond is not, as the Respondent would have it, proof that her complaints lacked merit; it is further, telling evidence of the very institutional indifference of which she complains. (xiii) The doctrine of mutual trust and confidence 1. The doctrine of mutual trust and confidence, though nowhere spelled out in the text of the Contract of Employment, is properly to be treated as an implied term of every contract of employment, without which the employment relationship cannot function. The House of Lords, in Malik v Bank of Credit and Commerce International SA [1997] UKHL 23, recognised the obligation as one not to conduct oneself "in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust" between employer and employee, a formulation echoed, as already noted, by the Labour Appeal Court of South Africa in Pretoria Society for the Care of the Retarded v Loots (supra). 2. That doctrine fits the facts of this case with some precision. Whatever the underlying merits of the Respondent's operational difficulties, the cumulative effect of the conduct I have found established, public humiliation, an unexplained and unilateral demotion in substance if not in form, a disciplinary sanction imposed without a hearing, and a sustained institutional silence in the face of repeated and escalating appeals for engagement, was destructive of precisely the confidence and trust the doctrine protects. An employee cannot be expected to give her best to an employer that has demonstrated, by a sustained pattern of conduct rather than by any single dramatic act, that her concerns will not be heard and her position will not be respected. I find that the trust and confidence necessary to sustain the employment relationship had, by February 2017, been destroyed, and that this destruction supports, rather than merely accompanies, the finding of constructive dismissal already made. (xiv) The Grievance Procedure argument 1. The Respondent submits that the Claimant's failure formally to invoke its Grievance Procedure defeats her claim, since a viable internal remedy remained available and unused throughout. I do not accept this submission, and find it unhelpful to the Respondent's case. 2. The evidence, unshaken in cross-examination, establishes that the Claimant did engage the internal mechanisms available to her, repeatedly and in substance, even if not always by the precise label "grievance." She wrote directly to the Managing Director, twice, formally protesting the Final Warning Letter and requesting its withdrawal. She lodged a formal complaint with the Respondent's Regional Human Resources office. She wrote, at length, to nine members of the Group's senior management, expressly framing her letter as an appeal for intervention because she did not believe a fair hearing was available to her "on the country level only," a statement that itself reflects a considered, rather than reflexive, decision about which channel offered the best prospect of being heard. An employee is not required to exhaust a particular named procedure to the letter where she has, in substance and in good faith, sought engagement, explanation and redress through the channels reasonably available and apparent to her, particularly where, as here, the officer to whom a formal grievance might most naturally have been addressed, the Managing Director, was himself the source of her complaints. The Respondent's submission that a "functioning mechanism" stood unused rings hollow against a record showing that every channel the Claimant did use returned only silence or an unfavourable, undiscussed reaffirmation of the very decision she was protesting. (xv) The absence of the Managing Director as a witness 1. I return, finally on the question of liability, to a matter already touched upon but which merits express and separate emphasis. The conduct centrally in issue in this cause is the conduct of one individual, the Respondent's former Managing Director, Mr Darren Brown. It was he who is alleged to have shouted at the Claimant on two occasions; he who signed the Final Warning Letter; he to whom her letters of protest, her Open Letter, and her letter of resignation were all addressed; and he whose silence, more than any other single fact in this record, the Claimant says confirmed her worst conclusions about her position in the company. He was not called to testify. 2. I do not draw any inference of bad faith from that fact alone; there may be entirely innocent explanations for a former employee's unavailability years after the events in question. But its evidential consequence is real and must be confronted squarely. The one person best placed to give this Court a first-hand, tested account of his own conduct, his intentions, and his understanding of events that only he and the Claimant witnessed at close quarters, was never subjected to cross-examination, never asked to explain the tone of his emails, never asked why the Human Resources Manager's reservations about the Final Warning Letter were disregarded, and never asked why nine executives copied on the Claimant's Open Letter received no reply of any kind, from him or from anyone else. His absence leaves the Claimant's account of his conduct not merely uncontroverted as a matter of pleading, but genuinely untested in the one respect that mattered most: an opportunity for the person whose conduct is impugned to give his own account of it. That absence weighs, and weighs materially, in favour of the reliability of the Claimant's narrative as the only first-hand account this Court has been given of the central events in issue. (xvi) The "voluntary resignation" narrative 1. I turn to the Respondent's narrative, advanced consistently since its letter of 1st March2017, that the Claimant simply resigned voluntarily. I find that this narrative does not withstand scrutiny against the Claimant's own resignation letter, a document authored by her, in her own words, at the very moment of her departure, when any motive to construct a case for litigation years later can fairly be assumed to have been at its lowest. 2. That letter is not the perfunctory notice of an employee moving on to new opportunities. It is captioned, in terms, "CONSTRUCTIVE DISMISSAL." It recites, specifically and by date, her letters of 9th and 10th November 2016 and 8th February 2017 as the documented history of her complaints. It states, in terms, that "all attempts have been and continue to be made to frustrate me into resigning," that the relationship with the Managing Director had "deteriorated to a level that I feel I cannot tolerate any longer," that the restructuring was undertaken "in breach of my contract of employment," and that "there is a complete breakdown of trust and confidence on my part arising out of your wrongful and callous conduct which makes my position with yourselves untenable." It identifies the visa letter refusal, in terms, as the final straw in a chain of unaddressed grievances. This is not language consistent with an employee who has simply decided, for reasons of her own, to move on. It is the language of an employee who, at the moment of resignation itself, understood and articulated her departure in precisely the terms the law of constructive dismissal requires. The Respondent's own reply of 1st March 2017 did not deny that this was the letter's content or tenor; it simply asserted, without engaging with a single one of the specific grievances raised, that the Company had never intended to terminate her employment and that internal mechanisms "ought" to have been used first. That is not a rebuttal of the Claimant's account; it is, at most, a bare assertion that the Respondent did not intend the consequences of its own conduct, a matter on which, as already discussed, the doctrine of constructive dismissal has never required proof of intention. (xvii) Constructive dismissal as unfair dismissal, and the remedies that follow 3. Having found that the Claimant was constructively dismissed, it remains to record, for completeness, the legal consequence of that finding. A constructive dismissal is not a lesser or different species of departure from an ordinary unfair termination; once established, it is treated, for all purposes material to remedy, as an unfair termination of employment, the employee having been entitled to, and having exercised her right to, terminate the contract without notice by reason of the employer's conduct. It follows that the remedies ordinarily available to an employee who has suffered an unfair termination, or, where applicable, a wrongful summary dismissal, are equally available to the Claimant here. I turn to consider each of the reliefs claimed in that light. I. RELIEFS 1. Notice pay. Having found that the Claimant was constructively dismissed, and that it was, in substance, the Respondent's conduct that brought the contract to an end, the notice obligation that would ordinarily fall on a resigning employee does not operate against her; instead, she is entitled to be placed, so far as notice is concerned, in the position she would have occupied had the Respondent lawfully terminated her employment, that is, to three months' salary in lieu of notice, as stipulated in the "Notice" clause of her Contract of Employment. I have had regard to the correct figure for her gross monthly salary. The increment letter of 19th September 2016, which the Claimant herself produced, records in terms that only 3% of the 8% increment awarded was added to her running gross salary with effect from 1st September 2016, bringing it to Kshs. 509,000, while the remaining 5% was deferred and was, by the Claimant's own pleading, to be paid together with a bonus in April 2017. Her own payslips for the period in issue, as referenced without contradiction in the record, confirm a consistent gross salary of Kshs. 509,000. I decline, therefore, to adopt the inflated figure of Kshs. 524,000 used in the amended computation in her pleadings, there being no evidentiary basis for it. On a proper computation, three months' salary in lieu of notice amounts to Kshs. 509,000 x 3 = Kshs. 1,527,000, and I award that sum. 2. Compensation under section 49(1)(c) of the Employment Act. Section 49(1)(c) empowers this Court to award compensation not exceeding the equivalent of twelve months' wages, having regard to the factors set out in section 49(4), including the wishes of the employee, the circumstances in which the termination took place, including the extent to which the employer caused or contributed to it, the employee's length of service, and the practicability of reinstatement. I have weighed these factors. The Claimant served the Respondent for very close to four years. The Respondent's conduct, as found above, was the substantial and, on this record, essentially unrebutted cause of her departure, and included a disciplinary sanction imposed without any semblance of a fair hearing, a factor this Court is entitled to weigh heavily. Against this, I note that the underlying commercial pressures said to have prompted the restructuring were not shown to be a pretext, that the Claimant's own conduct in the workplace was not impugned by any credible evidence, and that reinstatement was neither sought nor, on this record, practicable, the relationship having irretrievably broken down and a considerable period having since elapsed. Weighing these considerations, I am satisfied that a fair and proportionate award is the equivalent of eight months' gross salary. I compute this as Kshs. 509,000 x 8 = Kshs. 4,072,000, and I award that sum as compensation under section 49(1)(c) of the Employment Act. 3. Pending leave. The Claimant claims payment for 17.49 days of untaken annual leave as at the date of her departure, a figure to which she testified and which stands unchallenged on the record; no witness of the Respondent's was called to dispute it. The Respondent's submissions rely instead on a document described as a "Leave Balance" payroll record, said to show an outstanding balance of only 6.99 days. That document was never produced or proved through any witness of the Respondent's, and, unlike the documents discussed at paragraph 35 above, it is not a document the Claimant herself adopted or relied upon in her own testimony; it remains, in consequence, a document with no evidential standing before this Court. Submissions of counsel, however carefully drafted, are not themselves evidence and cannot substitute for proof: Mwangi Stephen Muriithi v Daniel Toroitich Arap Moi & Another [2014] KECA 273 (KLR). I accordingly accept the Claimant's unchallenged testimony of 17.4950 outstanding leave days. Computed at her correct daily rate of Kshs. 509,000 ÷ 30 = Kshs. 16,966.67, this yields Kshs. 16,966.67 x 17.4950 = Kshs. 296,831.83, which I round to Kshs. 296,832, and which I award. 4. Underpaid salary. I decline this relief. On the Claimant's own pleaded case, the 5%balance of the September 2016 increment, said to amount to Kshs. 15,000 per month, was never intended to be paid as an addition to her running monthly salary; her own Amended Statement of Claim records that it "was to be paid to her together with the 2016 bonus payment payable in April 2017." A sum that the Claimant's own pleadings characterise as a deferred component of a discretionary bonus, payable at a future date she did not reach in employment, cannot simultaneously be claimed as an accrued monthly salary shortfall for the intervening period. The claim for underpaid salary is, on the Claimant's own documents, not established, and I decline to award it. 5. Bonus for the year 2016. I decline this relief also, though for reasons distinct from those advanced in the Respondent's submissions. The Claimant did not plead or prove any ascertainable entitlement to a specific sum. Her own Amended Statement of Claim leaves the computation of any 2016 bonus to "a weighted calculation to be carried out by the Respondent," a formulation that, on its face, concedes that no fixed sum was ever quantified, agreed, or proved by the Claimant herself, whether by reference to a formula, a performance metric, or any comparator. A court cannot award what has not been quantified or shown, by credible evidence, to be due. I do not need to, and do not, rely on the Respondent's characterisation of its Employment Manual, a document whose provisions, as recited in submissions rather than proved in evidence, I have treated with appropriate caution for the reasons already discussed; the claim fails, more simply and more safely, for want of proof of its basis and quantum by the party who bore the burden of establishing it. 6. Exemplary damages. Exemplary damages are awarded, exceptionally, not to compensatea claimant but to punish a defendant and to mark the court's disapproval of conduct of a particularly high order of reprehensibility. Kenyan courts, following the classification in Rookes v Barnard [1964] AC 1129, confine such awards to narrow categories: oppressive, arbitrary or unconstitutional conduct by servants of government; conduct calculated by the defendant to make a profit for itself which may well exceed the compensation payable to the claimant; and cases where a statute expressly authorises such an award. This is not one of those cases. The Respondent is a private commercial entity, not an organ of the State; there is no evidence that its conduct was calculated to yield it a profit exceeding any compensation payable; and no statute confers on this Court a power to award exemplary damages in a claim of this nature. However troubling I have found aspects of the Respondent's conduct to be, they fall short of the calculated, profit-motivated or state oppressive character that the doctrine of exemplary damages exists to punish. I decline to award exemplary damages. 7. General damages. I decline this relief as well. Section 49 of the Employment Act constitutes a comprehensive statutory code for the remedies available to an employee upon an unfair or wrongful termination, compensation under section 49(1)(c), together with the other specific reliefs the section contemplates, being the measure of redress Parliament has prescribed. To award, in addition, an open-ended sum of general damages at common law for the same wrong already compensated under section 49 would be to compensate the Claimant twice over for a single loss, once under the statutory head and again under a common law head addressing substantially the same harm, an outcome our Court of Appeal has cautioned against in considering the scope of section 49 in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] KECA 409 (KLR) and CMC Aviation Limited v Mohammed Noor [2015] KECA 775 (KLR). In any event, and independently of that principle, the Claimant placed no distinct evidence before this Court quantifying any loss beyond that already captured in the reliefs awarded above. General damages are declined. 8. Certificate of service. The Claimant is entitled, upon the termination of her employment, to a certificate of service, a statutory entitlement that does not depend upon a finding as to the character of the termination. The Respondent's assertion, in its submissions, that a certificate of service was already issued is not supported by any evidence properly before this Court, submissions once again not being evidence. I order that the Respondent do issue the Claimant with a certificate of service within thirty (30) days of this judgment, should it not already have done so. 9. Costs and interest. The Claimant has substantially succeeded in this cause and is entitled to the costs of the claim. She is further entitled to interest on the sums awarded at paragraphs 75 to 77 above at court rates, from the date of this judgment until payment in full. J. THE COUNTERCLAIM 1. I have already found, at paragraph 37 above, that the Respondent's counterclaim was never proved, no witness having been called in its support. That finding alone disposes of the counterclaim. I record, in addition and for completeness, two further and independent reasons why it cannot succeed. 2. First, the Claimant's objection that the counterclaim, introduced for the first time by amendment in July 2023 in respect of a cause of action said to have accrued on 28th February 2017, was filed well outside the three-year limitation period prescribed by section 90 of the Employment Act, was not answered by the Respondent in its final submissions at all. An unanswered limitation defence, properly pleaded, is not to be treated as abandoned by this Court merely because the point was not pressed in argument; the objection stands unrebutted on the record, and I find that the counterclaim is, in addition, time-barred. 3. Second, and in any event, the counterclaim was always parasitic upon a finding that the Claimant resigned voluntarily in breach of her notice obligations. I have found the contrary: that the Claimant was constructively dismissed, and that it was, in substance, the Respondent's own conduct that brought the employment relationship to an end. An employee who has been constructively dismissed owes her employer no notice, the very premise of the notice obligation, an orderly and voluntary departure, being absent. The counterclaim, resting as it does on a voluntary resignation that I have found not to have occurred, fails on the merits as well. 4. The counterclaim is dismissed, with costs to the Claimant. K. DISPOSITION 88. For the reasons set out in this judgment, I make the following orders: 1. It is hereby declared that the Claimant was constructively dismissed from her employment with the Respondent on 28th February 2017. 2. The Respondent shall pay the Claimant three months' salary in lieu of notice, in the sum of Kshs. 1,527,000. 3. The Respondent shall pay the Claimant compensation for unfair constructive dismissal under section 49(1)(c) of the Employment Act, equivalent to eight months' gross salary, in the sum of Kshs. 4,072,000. 4. The Respondent shall pay the Claimant Kshs. 296,832 in respect of 17.4950 days of untaken annual leave. 5. The claims for underpaid salary, bonus for the year 2016, exemplary damages and general damages are declined. 6. The Respondent shall issue the Claimant with a certificate of service within thirty (30) days of this judgment, if it has not already done so. 7. The sums awarded in orders (b), (c) and (d) above shall attract interest at court rates from the date of this judgment until payment in full. 8. The Respondent's counterclaim is dismissed. 9. The Respondent shall bear the costs of the claim and of the counterclaim. **DELIVERED, DATED AND SIGNED AT MOMBASA THIS 10TH DAY OF AUGUST, 2026.** **OCHARO KEBIRA** **JUDGE**