Njuki v New Kenya Co-operative Creameries Limited (Employment and Labour Relations Cause E002 of 2025) [2026] KEELRC 1808 (KLR) (26 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **ELRC CAUSE NO. E002 OF 2025** **VERONICA KARIMI NJUKI…………………………...…………CLAIMANT** **VERSUS** **NEW KENYA CO-OPERATIVE** **CREAMERIES LIMITED………………………………………RESPONDENT** **JUDGMENT** 1. It is common ground that the Claimant was employed by the Respondent as a Sales Representative with effect from 11th May 2015 and was subsequently confirmed in that position upon successful completion of her probationary period through a letter dated 10th June 2019. It is also undisputed that the Claimant tendered her resignation by a letter dated 1st June 2024. 2. What is in dispute between the parties are the circumstances that culminated in the termination of the employment relationship. On her part, the Claimant contends that she was constructively dismissed from employment. She alleges that the Respondent ceased providing travel and airtime allowances, inconsistently remitted medical insurance premiums, failed to provide a motor vehicle to facilitate her marketing duties, thereby hindering her performance, neglected to remit statutory and pension deductions to the National Social Security Fund (NSSF) and pension scheme, abused the check-off system, and discontinued payment of per diems or approved them late. 3. The Claimant further avers that despite consistently receiving favourable performance appraisals, the Respondent neither promoted her nor increased her salary, thereby leading to her lack of career growth and subjecting her to a toxic working environment. 4. On the basis of the foregoing, the Claimant seeks the following reliefs against the Respondent: - 5. ***A declaration be and is hereby issued that the Respondent was in breach of the terms of Employment for failure to remit statutory deductions and other deductions from the Claimant's salary.*** 6. ***A declaration be and is hereby issued that the Respondent omission and commission aforementioned amounted to breach of contract of employment and amounted to unjust enrichment.*** 7. ***A declaration be and is hereby issued that the Claimant's resignation vide a letter dated 1st June, 2024 was involuntary and amounted to constructive termination of employment.*** 8. **Payment of:** 9. ***Kshs. 21,600/= being a sum of money deducted from the Claimant's salary but was neither remitted to NSSF nor refunded to the Claimant.*** 10. ***Kshs.292,071.39/= being monies deducted towards payment to pension fund with Britam Insurance Company Limited but was neither remitted to it nor refunded.*** 11. ***Kshs. 40,889.90/= being interest on (ii) above not earned as a result of the Respondent's Omission.*** 12. ***Kshs. 10,359/= a sum of money deducted but was neither remitted to CIC Insurance nor refunded to the Claimant.*** 13. ***Kshs. 15,600/= being amount deducted from the Claimant but neither remitted to Kencream Sacco and Kencream benevolent Fund nor refunded to the Claimant.*** 14. ***Kshs. 1,892/= deducted towards Housing levy but neither remitted to KRA nor refunded to the Claimant.*** 15. ***Kshs. 5,670/= being a sum of money deducted towards airtime by the Respondent but not given.*** 16. ***Kshs. 250,187.90/=being unpaid leave earned but not given. ix) Kshs. 56,000/= being unpaid travel allowance for November, 2023 as per route plan.*** 17. ***Kshs. 1,514,100/= being 12 months compensation for unlawful and constructive termination.*** 18. ***An order compelling the Respondent to pay the unremitted sum in d(i), d(vi) above to NSSF and KRA respectively from its own money as exemplary damages for its omissions and commissions.*** 19. ***Interest on (d) above from the date of filing to payment in full.*** 20. ***Costs of the suit.*** 21. In reply to the Claim, the Respondent filed a Statement of Response dated 12th May 2025, in which it denies the Claimant’s allegations and puts her to strict proof thereof. Consequently, the Respondent has urged the Court to dismiss the Claim in its entirety with costs. 22. The matter proceeded for hearing, with the Claimant’s case being heard on 8th December 2025 and the Respondent’s case on 21st April 2026. **Claimant’s Case** 1. The Claimant testified in support of her case, and for starters, she adopted her witness statement to constitute her evidence in chief. She further produced the documents contained in her list and bundle of documents as exhibits before the Court. 2. The Claimant testified that the Respondent deducted Kshs. 2,160/= from her salary every month but failed to remit the same to the NSSF for the period between February 2024 and June 2024, resulting in unremitted deductions totaling Kshs. 10,800/=. She further stated that the Respondent was required to make a matching contribution of Kshs. 10,800/=, which was similarly not remitted. 3. The Claimant further testified that under the applicable pension scheme, she was required to contribute 7% of her basic salary while the Respondent was obligated to contribute 10%. According to her, her monthly contribution amounted to Kshs. 7,363.13/= while the Respondent’s contribution stood at Kshs. 9,817.50/=. She contended that although the Respondent deducted pension contributions from her salary between February 2023 and June 2024, it failed to remit the same to the Britam Umbrella Pension Fund under the New KCC Pension Scheme. 4. The Claimant further averred that in November 2023, the Respondent deducted Kshs. 10,359/= from her salary but failed to remit the amount to CIC Insurance Company Limited. 5. She further testified that between October 2023 and December 2023, the Respondent deducted Kshs. 5,000/= monthly from her salary in respect of Kencream SACCO contributions but failed to remit the same. Similarly, deductions of Kshs. 200/= per month made during the same period on account of the Kencream Benevolent Fund were allegedly not remitted. 6. The Claimant further stated that in March 2024, the Respondent deducted Kshs. 1,892/= from her salary towards the Housing Levy, but did not remit the same. She maintained that since the deductions had been stopped pursuant to a court order, she was entitled to a refund of the said amount. 7. She further testified that the Respondent deducted Kshs. 945/= monthly from her salary between January 2024 and June 2024, amounting to Kshs. 5,670/= in total, but failed to account for or pay over the said sums. 8. The Claimant stated that she tendered her resignation through a letter dated 1st June 2024, which resignation was accepted by the Respondent vide a letter dated 21st June 2024. She further testified that she subsequently underwent an exit interview conducted by one ***Sandra Olembo*** and completed an exit interview form dated 8th July 2024. 9. It was the Claimant’s case that her resignation was not voluntary but was precipitated by the Respondent’s conduct, particularly the deduction and non-remittance of statutory and other employment-related contributions. 10. She further testified that her immediate supervisor, the Regional Sales Manager, routinely denied her fuel allocations, thereby hindering her ability to undertake market visits, engage retail and institutional clients, and carry out debt collection duties. According to the Claimant, this affected her ability to address customer complaints relating to product quality and batch numbers, consequently affecting her overall performance. She also stated that the working environment became difficult as Mr. Thuranira would either cancel or decline to approve her staff expense claims. 11. The Claimant maintained that the Respondent’s actions and omissions amounted to a fundamental breach of her contract of employment, thereby rendering her resignation a case of constructive dismissal. She contended that the prevailing work environment had become intolerable, leaving her with no reasonable option but to leave the Respondent’s employment. 12. The Claimant further testified that she made several attempts to have the issues addressed by engaging the Managing Director, the Acting Chief Manager, the Chief Manager (Sales and Marketing), the Chief Manager (Human Resources), and the Head of National Sales, to no avail. **Respondent’s Case** 1. The Respondent called one witness, **Ms. Sandra Olembo**, who testified as RW1. Ms. Olembo identified herself as the Acting Human Resource Manager of the Respondent. Equally, she adopted her witness statement to constitute her evidence in chief. She further produced the Respondent’s list and bundle of documents as exhibits before the Court. 2. RW1 testified that the Claimant was initially engaged on a six-month probationary period, which was subsequently extended on account of her failure to attain the key performance indicators and performance targets, as well as her inability to interact collegially with her colleagues and superiors. 3. RW1 further averred that while deployed at the Respondent’s Nanyuki Sales Depot, the Claimant frequently had disagreements with her superior, the Regional Sales Manager, arising from her alleged failure to comply with instructions and directives issued to her. 4. RW1 further testified that the Claimant was found to have used a company-issued motor vehicle for personal purposes while on leave, contrary to the Respondent’s policies. Consequently, deductions were made from her salary to recover the associated costs. 5. According to RW1, the Claimant was still unable to work peacefully with her colleagues and supervisors, thereby creating friction within the workplace. RW1 contended that the Claimant’s refusal to comply with management directives occasioned unnecessary losses to the Respondent. 6. RW1 further stated that the Claimant failed to adhere to established sales procedures by authorizing manual invoices instead of utilizing SAP-generated invoices as required. She asserted that this exposed the Respondent to potential losses. 7. RW1 also testified that, according to the SAP system, the Claimant had accumulated 68 unutilized statutory leave days, contrary to the provisions of the Respondent’s Human Resource Policy and Procedures Manual. She further stated that an Executive Order issued by the Office of the President required all public servants to carry forward no more than 15 leave days into the subsequent financial year and to utilize any excess leave before June 2024. 8. It was RW1’s testimony that the Claimant was therefore obliged to comply with the directive and take her accrued leave days. 9. It was RW1’s view that the Claimant was neither constructively dismissed nor subjected to a hostile work environment. Rather, she maintained that any difficulties experienced by the Claimant were a creation of her own making due to her unwillingness to work in a genial manner with her colleagues and to respect her supervisors. **Submissions** 1. The Claimant submitted that the reasons advanced for her resignation, as reflected in her exit interview form, demonstrate that she was driven to resign by the Respondent’s acts and omissions. In support of her position, she relied on the decisions in ***Milton M. Isanya v Aga Khan Hospital Kisumu (2017) eKLR*** and ***Nathan Ogada Atiagaga v David Engineering Limited (2015) eKLR***. 2. It was the Claimant’s further submissions that an employer’s failure to remit agreed deductions, whether statutory or otherwise, amounts to a breach of the employee’s authorization and the employment contract, and exposes both the employer and employee to prejudice, including penalties and financial hardship. 3. The Claimant further argued that persistent failure to pay salary or remit deductions constitutes a fundamental breach of the employment contract, entitling an employee to resign and claim constructive dismissal. On this score, reliance was placed on the authorities of ***Coca Cola East Africa Limited v Maria Kagai Ligaga (2015) eKLR, Godfrey Allan Tolo v Tobias O. Otieno & another (2022) eKLR,*** and ***Abonyo v Finacess Limited (2025) KEELRC 31 (KLR).*** 4. On its part, the Respondent submitted that the Claimant was not constructively dismissed but voluntarily terminated her employment by tendering her resignation letter. 5. It was further submitted by the Respondent that the Claimant’s allegations fall short of the legal threshold for constructive dismissal. The Respondent maintained that the separation was voluntary and mutually effected, and that no conduct, act, or omission on its part amounted to a fundamental breach of the employment relationship or created intolerable working conditions compelling resignation. In support of these arguments, the Respondent placed reliance on the decisions in ***Nathan Ogada Atiagaga v David Engineering Limited [2015] KEELRC 75 (KLR)*** and ***Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR).*** 6. The Respondent further contended that the Claimant did not allege that it unilaterally altered her duties, remuneration, benefits, or any other fundamental terms of the employment contract during the subsistence of the employment relationship. 7. According to the Respondent, the matters complained of by the Claimant do not amount to a fundamental breach going to the root of the contract so as to sustain a claim for constructive dismissal. 8. The Respondent further submitted that all statutory deductions made from the Claimant’s salary were duly remitted to the relevant institutions. 9. It was further argued that the Respondent cannot be said to have engaged in any persistent failure to remit statutory deductions over a significant period so as to reasonably justify termination of employment by the Claimant. 10. Relying on the case of ***Kihara v Almasi Bottlers Limited & another [2025] KECA 1893 (KLR),*** the Respondent submitted that the essential element of causation in constructive dismissal has not been established. In the same vein, the Respondent contended that the Claimant’s resignation letter made no reference to the alleged intolerable working conditions or grievances now being relied upon. **Analysis and Determination** 1. Flowing from the pleadings filed by both parties, the evidence on record, as well as the rival submissions, the Court has isolated the following issues for determination: 2. **Whether the Claimant has established that she was constructively dismissed;** 3. **Whether the Claimant is entitled to the reliefs she seeks;** **Constructive dismissal?** 1. The Claimant’s case is that her resignation from the Respondent’s employment was not voluntary. In this regard, she contends that she was constructively dismissed and attributes her resignation to various acts and omissions on the part of the Respondent. 2. The Respondent, on the other hand, maintains that the Claimant resigned voluntarily, and that her resignation was duly accepted. 3. In view of the foregoing competing positions, the key issue for determination is whether the Claimant has discharged the burden of proving that her resignation was involuntary and therefore amounted to constructive dismissal. 4. The Black’s Law Dictionary (10th Edition) defines *“constructive dismissal”* as follows: ***“An employer’s creation of working conditions that leave a particular employee or group of employees little or no choice but to resign, as by fundamentally changing the working conditions or terms of employment; an employer’s course of action that, being detrimental to an employee, leaves the employee almost no option but to quit.”*** 1. In simple terms, constructive dismissal arises where an employee resigns as a result of intolerable working conditions created by the employer, thereby rendering the resignation effectively involuntary. Notwithstanding such resignation, the employee may nonetheless maintain a claim for wrongful termination of employment. 2. Further, a unilateral breach of fundamental terms of an employment contract may amount to a repudiatory breach, entitling the affected employee to treat the contract as terminated and to regard themselves as no longer bound by its terms. 3. The Court of Appeal addressed the issue of constructive dismissal in ***Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR,*** wherein it set out the following guiding principles applicable to claims of constructive dismissal: - 4. *What are the fundamental or essential terms of the contract of employment?* 5. *Is there a repudiatory breach of the fundamental terms of the contract through the conduct of the employer?* 6. *The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.* 7. *An objective test is to be applied in evaluating the employer’s conduct.* 8. *There must be a causal link between the employer’s conduct and the reason for employee terminating the contract i.e causation must be proved.* 9. *An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination.* 10. *The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach.* 11. Turning to the present case, the record bears that the Claimant tendered her resignation from employment through a letter dated 1st June 2024. For context, the contents of the said letter are reproduced hereunder: - *“Dear Sir/Madam,* ***SUBJECT: RESIGNATION NOTICE*** *This letter serves as my official resignation from the role of sales representative at New KCC Ltd. I will be concluding my duties on 30th June 2024.* *I have chosen to progress and seek my professional growth in another place. Kindly acknowledge my resignation.* *Kindly approve my request for:* 1. *The removal and disposal of all disciplinary letters/communication from my personal file.* 2. *The discontinuation of airtime for mobile numbers (redacted)from 1st July 2024 as well as their release back to me.* 3. *Update my NSSF, pension and NHIF contributions.* *I am grateful for the chance bestowed upon me to be a part of this organization and your expert mentorship and encouragement. May you and your company continue to thrive in the coming years.* *Sincerely yours,* *Veronica Njuki”* 1. Revisiting the principles enunciated in ***Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [supra],*** it is evident that the Claimant bore the burden of establishing causation, namely, a direct causal nexus between the Respondent’s conduct and her decision to resign. 2. A careful perusal of the Claimant’s letter of resignation shows that she attributed her decision to resign to considerations of professional growth. Notably, she did not cite any of the alleged acts or omissions by the Respondent that she now relies upon in her claim. 3. Indeed, the issues now advanced by the Claimant as constituting the basis of her resignation are conspicuously absent from her resignation letter. It is therefore not apparent that the Claimant’s resignation was precipitated by the alleged failure to remit statutory and non-statutory deductions, failure to promote her or adjust her salary, or the alleged hostile working environment. 4. On the contrary, the tone of the Claimant’s resignation letter was largely appreciative and positive. In the said letter, the Claimant expressed gratitude for the opportunity to serve in the organization as well as for the mentorship and encouragement she had received. 5. While the Claimant’s exit interview questionnaire reflects that her experience within the organisation was mixed, comprising both positive and negative aspects, it is noteworthy that the exit interview was conducted at the instance of the Respondent as a mechanism for obtaining feedback from the Claimant and after her resignation had already been tendered and accepted. In any event, it is apparent that the responses therein merely reflected her general experience and did not expressly state that the matters complained of were the reason for her resignation. 6. If indeed the alleged grievances constituted the primary basis for the Claimant’s resignation, nothing would have prevented her from clearly stating as much in her resignation letter. She did not need to wait for the exit interview in order to express any dissatisfaction with her employment. 7. It may well be that the Claimant’s experience at the Respondent’s workplace was not entirely pleasant. However, it remained incumbent upon her to demonstrate, at the outset through her resignation letter, that those alleged issues were the principal cause of her resignation. 8. In the circumstances, the Court is not persuaded that the Claimant has established the requisite causal link between her resignation and the alleged conduct of the Respondent. 9. On the totality of the evidence on record, the Court finds that the Claimant has not proved, to the required standard, that her resignation was involuntary or that it amounted to constructive dismissal. **Reliefs?** 1. Having found that the Claimant was not constructively dismissed, the Court returns that the declaratory reliefs sought, as well as the claim for compensation for unfair termination, are not available to her. 2. With regard to the claim for unremitted NSSF deductions, the Claimant produced her statement of account, which shows that no remittances were made for the period between January 2024 and June 2024. However, since NSSF deductions are statutory in nature, they are not payable to the Claimant in monetary form. Accordingly, the Court directs the Respondent to remit to the NSSF the deductions made from the Claimant’s salary during the period of her employment, in the event the same have not already been remitted. 3. The Claimant has also sought reimbursement of **Kshs. 292,071.39**, being pension deductions allegedly made from her salary between February 2023 and June 2024 but not remitted to Britam Umbrella Pension Fund. In support of this claim, the Claimant only produced a statement of account covering up to January 2023. Notably, no evidence was tendered for the period beginning January 2023 up to June 2024. As such, the Court is unable to verify whether the alleged non-remittance occurred as claimed. In the circumstances, and bearing in mind that this is a specific claim requiring strict proof, the Court finds that the Claimant has failed to discharge the burden of proof to the requisite standard. Accordingly, the claim is disallowed. 4. The Claimant further claims **Kshs. 10,359/=** being CIC insurance deductions for November 2023, which were allegedly not remitted. The CIC statement exhibited by the Claimant confirms that the said amount was not remitted, notwithstanding that the Claimant’s November 2023 pay slip reflects a corresponding deduction of Kshs. 10,359.00. In the circumstances, the Court finds that the said sum is payable to the Claimant. 5. The Claimant further seeks **Kshs. 15,600/=** being alleged unremitted SACCO deductions payable to Kencream SACCO and Kencream Benevolent Fund for the period between October 2023 and December 2023. In support of her claim, the Claimant produced her statement of account from Kencream SACCO reflecting a cumulative debit of Kshs. 15,000/=. In the absence of evidence of remittance by the Respondent, the Court finds that the said sum is due and payable to the Claimant. 6. The Claimant further seeks reimbursement of **Kshs. 1,892/=,** which was deducted in March 2024 on account of the Housing Levy, but allegedly not remitted. She contends that the deduction was effected at a time when the levy had been suspended. While the Claimant’s pay slip confirms that the Housing Levy was indeed deducted in March 2024, no court order or other documentary evidence was produced to demonstrate that the deduction fell within a period of lawful suspension. In the circumstances, the Court finds that this claim has not been proved to the required standard and is therefore declined. 7. The Claimant further claims unpaid leave in the sum of **Kshs. 250,287/=** in respect of 79 accumulated leave days. In support of this claim, she produced a leave application form dated 1st January 2023, showing that she had applied for 60 days’ leave. The said form bears a handwritten instruction indicating that only 30 days were approved, with the Claimant being advised to take more leave days *“depending on the situation”.* The Respondent, while acknowledging that the Claimant had 68 accrued leave days, maintained that under its prevailing policy, an employee was not permitted to carry forward more than 15 days into the subsequent year. This position is, however, inconsistent with ***Section 28(4) of the Employment Act,*** which entitles an employee to utilize any outstanding leave within 18 months after the completion of that 12-month leave-earning period. 8. In any event, it is evident that the Claimant’s inability to exhaust her leave was not voluntary, as her request to take 60 days' leave was declined. It would therefore be unjust for the Respondent to deny the Claimant’s request to proceed on leave and at the same time restrict the number of leave days she could carry forward to 15. 9. Accordingly, the Court finds that the Claimant is entitled to compensation for 79 accrued leave days, as reflected in her clearance form dated 3rd July 2024. 10. The Claimant further seeks payment of unpaid travel allowance amounting to **Kshs. 56,000.00.** During the trial, the Claimant produced a route plan for November 2023 reflecting the said amount. She further produced a tabulation of expenses for November 2023, indicating staff expenses of Kshs. 30,000.00. The Respondent did not tender any evidence to show that the Claimant was reimbursed the amounts claimed as expenses. In the circumstances, the Court finds that the Claimant is entitled to the proved sum of Kshs 30,000.00 being travel expenses incurred. **Orders** 1. In the final analysis, the Claimant’s claim on constructive dismissal is dismissed. However, the Court makes the following awards in respect of the proved components of the claim: 2. **Kshs. 10,359.00 being deductions made but not remitted to CIC Insurance;** 3. **Kshs. 15,000.00 being deductions made but not remitted to Kencream SACCO;** 4. **Kshs. 30,000.00 being unpaid travel allowance for November 2023;** 5. **Kshs. 250,187.90 being compensation for accrued but untaken leave days;** 6. **Interest shall start to accrue on the said sums 30 days after the date of this Judgment;** 7. **The Respondent shall remit all unremitted NSSF deductions in respect of the Claimant for the period January to June 2024 within 30 days from the date of this Judgment, in the event the same have not already been remitted. In default, the Respondent shall transmit the said sums to the Claimant for onward remittance to the Fund;** 8. **The Respondent shall bear the costs of the Claim, it being evident that these proceedings could have been avoided had the Respondent acted upon the Claimant’s demand letter dated 9th September 2024.** **DATED, SIGNED** and **DELIVERED** at **NYERI** this**26th** dayof **June 2026**. ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: For the Claimant Ms. Mwathi instructed by Mr. Chweya For the Respondent Mr. Kibe instructed by Mr. Gisemba Court assistant Ndati **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**