Wahothi v Pharmaplus Pharmaceuticals Ltd (Cause E260 of 2021) [2026] KEELRC 1574 (KLR) (11 June 2026) (Judgment)

Wahothi v Pharmaplus Pharmaceuticals Ltd (Cause E260 of 2021) [2026] KEELRC 1574 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1574 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E260 of 2021 ON Makau, J June 11, 2026 Between Joseph Kimani Wahothi Claimant and Pharmaplus Pharmaceuticals Limited Respondent Judgment 1.By a Memorandum of Claim dated 23rd March 2021, the Claimant sued the Respondent for constructive dismissal and unfair labour practices and prayed for the following: -a.Pay for leave days not taken during the employment;b.Salary for the month of June;c.Housing allowance;d.Payment for overtime and public holidays;e.Unremitted and underpaid NSSF;f.Service pay;g.Damages for constructive dismissal equal to 12 months' salary;h.Certificate of service;i.Interest on (a), (b), (c), (d), (e) and (g) from date of judgment until payment in full;j.Costs and interest from date of judgment until payment in full;k.Any other appropriate relief that the court deems fit. 2.The Respondent filed a Statement of Response dated 14th June 2021 denying all the allegations made by the claimant in his Claim and averred that it dismissed the claimant for absconding duty. Therefore, it prayed that the Claim be dismissed with costs. Evidence 3.The Claimant testified as CW1 and adopted his witness statement dated 23rd March 2021 as his evidence in chief. He also produced 9 documents as exhibits as Exhibits 1 to 9 respectively. In brief, his testimony was that he was employed by the Respondent first as a Branch Manager at Capital Centre on 6th February 2018 earning a salary of Kshs. 42,000. Thereafter, he was promoted to Operations Manager earning Kshs. 91,994.71 per month then to General Manager on 29th July 2019 without a salary increment. 4.He contended that all this while he had not been given an employment contract but in May 2018 he asked for the same from the Respondent as he needed to apply for a loan. The contract he was back dated to 6th February 2018. He stated that being the General Manager, he was always required to work much longer than other employees. He was required to report to work by 7.30 a.m. at the Headquarters at Mombasa Road for the morning meetings and work until 5.00 p.m. 5.He was then required to proceed to various other branches, like Kitengela, Lavington and Capital Centre where he would work with the branch staff until their closing time which was about midnight. He was then required to analyse the sales for all the twenty (20) branches. This happened every day, including his off days. Thereafter he would later on wait for a call from one of the directors, one Vincent Kipkurui Marinai, to explain the sales of the various branches and this could last for about 1-2 hours. 6.The Claimant further stated that the Respondent undertook one stock-take each week which were all directed and supervised by him. This meant that he had to report to work by at least 7.00 a.m. then do the stock taking from 11.00 a.m, which is when he could start his work. Having to start his work late meant that he would also finish late and sometimes had to work for 24-26 hours, take a break then go back about his day. 7.He contended that he was never given any compensation for overtime and he also had to work on all public holidays. He was also not given any hardship allowance of any sort and his salary was never increased despite all the work he put in. He stated that this had a very negative impact on his family life as he is married with two young children. He was not able to see them nor was he given time off or leave to at least get rest. 8.He told the director of his intentions to resign on or about 1st June 2020. He then wrote the Respondent a letter dated 28th June 2020 via email. After resigning, he asked for his dues via a letter dated 7th July 2020 and got a reply dated 11th July 2020 stating that he had been dismissed for absconding the work. Despite several demands for his dues, including his June 2020 salary, the Respondent's management has been very reluctant to pay. 9.He contended that the working conditions were unfair, unfavorable and are what ultimately made him resign. He stated that he had always been diligent at his work and never had any disciplinary issues with the Respondent. 10.In cross-examination, he stated that he was employed as a Branch Manager, then rose through the ranks to become General Manager. In February 2018 he was Operations Manager. He was to manage operations generally and he was not responsible for recommending salaries for staff under him. In July 2019 he became General Manager. He stated that he was working for 23 hours a day. He further stated that all branches had Branch Managers but he was the General Manager. There were Accountants in every Branch who did reconciliation of the sales and then forward to him. He maintained that he was moving from Branch to another. 11.He admitted that his contract provided, in Clause 6, that he would work on normal hours unless he requested to work extra hours in writing but then it became impossible to do so because the director was not easily available. However. He admitted that he never wrote any complaint about the extra hours worked. 12.He stated that he was entitled to annual leave and he orally applied but it was denied. He further admitted that Clause 13 of his contract required him to give one month notice in writing before termination of the contract. However, he gave oral notice to the director of the company, Mr. Marinai but he avoided him. 13.He contended that he resigned due to mental problem and the nature of his work. However, he confirmed that his resignation notice dated 28th June 2020 does not mention mental health. 14.He contended that he initially demanded terminal dues computed at Kshs. 1,342,023, but stated that he now claims over Kshs. 5,000,000 after verification. He confirmed that he was being deducted National Social Security Fund. 15.In re-examination, he clarified that, Clause 6 of his contract did not require him to make a request in writing before working extra hours. He further clarified that he was claiming the amount not remitted to National Social Security Fund. 16.Respondent called its Director/CEO, Mr. Vincent Kipkurui Marinai who testified as RW1. He adopted his witness statement dated 23rd February 2024 as his evidence in chief. In brief, his testimony was that the claimant was employed by the Respondent on 6th February 2018 and he tendered a resignation letter dated 28th June 2020 terminating his employment with immediate effect. Subsequently, the Respondent was received a demand letter dated 7th July 2020 from the Claimant seeking payment of terminal dues and that is when it realized that the Claimant had absconded work and was not ready to remedy the harm. 17.He contended that the resignation by the Claimant was in breach of Clause 14 of the contract employment as he never gave one month notice. Therefore, the Respondent had choice but to summarily dismissed the him on 11th July 2020 for misconduct namely, absenting himself from work without leave or lawful cause. 18.He stated that the employment agreement clearly provided for the Claimant's specific working hours and allowed for reasonable adjustment of those hours according to the needs of the clients. Since the Claimant was an administrator/supervisor, his position naturally required that he reports to work earlier and leaves later than other employees whom he supervised, and this was factored into salary negotiations. 19.He stated that the Respondent neither received any request for clarification of working hours nor concerns related to unreasonable working hours from the Claimant. The consolidated salary paid to the Claimant was all-encompassing including house allowance as negotiated. He stated that the Respondent made statutory deductions from the Claimant's salary and remitted the same to the relevant agencies as required by law. 20.He stated that according to the employment contract, the Claimant was entitled to leave days but applications for leave would be considered and granted at such times convenient with the Respondent. He also contended that leave days not applied for by the end of the calendar year were forfeited and could not be carried over to the following year. He contended that the Claimant applied for and was granted leave. 21.On cross-examination, RW1 confirmed that he was a director of the company and he was the immediate supervisor of the Claimant. He confirmed that Clause 6 of the Claimant's contract specified his working hours as statutory hours, meaning 8 hours. He admitted that the contract did not state that claimant’s salary was consolidated, but contended the starting salary was Kshs. 42,000 and later increased to Kshs. 92,000. He confirmed that the employment records are in the respondent’s accounts department. 22.He confirmed that the Respondent runs branches that operate 24 hours and there are Branch Managers reporting to the General Manager. He contended that there are two shifts serving twelve hours, reporting in the morning and evening hours. He confirmed that there was only one General Manager, that is the claimant, to receive the reports from the Managers in the two shifts. 23.In re-examination, RW1 denied that the Claimant worked 24 hours and clarified the claimant was based at the Head Office where he was receiving reports from the Managers in evenings and morning hours. 24.After the close of the hearing, both parties filed written submissions. Having considered the pleadings, evidence, and submissions, there is no dispute that the parties herein were engaged in an employer-employee contract. It is also not in dispute that the claimant tendered a resignation on 28th June 2020 but after serving a demand notice on 7th July 2020, claiming terminal dues, the Respondent purported dismiss him on 11th July 2020 for absconding work. The main issues for determination are: -a.Whether the separation was through resignation or summary dismissal.b.If the answer to (a) above is resignation, whether the resignation was voluntary or it amounted to constructive dismissal.c.Whether the Claimant is entitled to the reliefs sought. Analysis Resignation or summary dismissal 25.The Claimant produced Resignation letter dated 28th June 2020 and copy of the email vide which the letter was served. The letter sated that:“RESIGNATION LETTER AS THE COMPANY’S GENERAL MANAGERRegret to present this letter to you in writing as a formal confirmation of my resignation from the said company with effect from 28th June 2020.During the last two years in the company I have grown from Branch Manager, Operation Manager until today as the General Manager. I can say I have really learnt a lot from Leadership and Management. It was in deed my pleasure working with pharmaplus as the most senior staff.As you know well I have served with humility which has seen the company grow from 10 Branches to the current successful 24 Branches and other more awaiting.Your sincerelyJoseph WahothiGeneral ManagerPharmaplus Pharmaceuticals Ltd.” 26.The letter leaves no doubt that the claimant terminated the contract with effect from 28th June 2020. It follows that the alleged absconding of work and the purported summary dismissal were neither here nor there as the claimant had formally terminated the contract of employment. An employer has no right to decline an employee’s resignation for whatever reason including the failure to serve prior notice as required under the contract between the parties. Consequently, I find and hold that the separation between the parties herein was through resignation by the claimant and not summary dismissal by the respondent. Voluntary resignation or constructive dismissal 27.The Claimant contended that he was forced to resign because the Respondent made his working conditions so intolerable. He contended that he was made to work for many hours, with no off days or public holidays. He was also not granted annual leave despite request. He further stated that due to the said conditions of work his mental health and family life was negatively impacted. He contended that the said working conditions were so unreasonable, unfair and unfavourable that he felt compelled to leave. Therefore, he maintained that he was constructively dismissed by the respondent. 28.However, the Respondent denied the alleged constructive dismissal and contended that the Claimant voluntarily resigned from his employment without raising any grievance in his resignation letter. 29.In the case of Coca-Cola East and Central Africa Limited v. Maria Kagai Ligaga [2015] eKLR the Court of Appeal held that:“The key elements in the definition of constructive dismissal is that the employee must have been entitled to leave without notice because of the employer’s conduct. Entitled to leave has two interpretations which give rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behavior towards him was unreasonable that he could not be expected to stay – this is the unreasonable test. The second interpretation is that the employer’s conduct is so grave that it constituted a repudiatory breach of the contract of employment – this is the contractual test.” 30.The English case of Western Excavating ECC Ltd v. Sharp [1978] 2WLR 344, has been cited with affirmation by our courts, specifically where Lord Denning held: -“If the employer is guilty of conduct which is a 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, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice.” 31.The foregoing authorities notwithstanding, the emerging jurisprudence is that where an employee tenders a written resignation but fails blame the employer for the same, he cannot succeed in a suit for constructive dismissal. In the case of Mwaura v. CIC Insurance Group Ltd [2026] KECA 250 (KLR) the Court of Appeal held that:“ 35.Upon review of the record, we are not persuaded that the appellant was constructively dismissed. The record shows that his employment was due for termination owing to his own undoing, but he chose the easier alternative of resigning. His resignation letter does not in any way exhibit that he was forced to resign by his employer.” 32.In the case of Edward Machuka Nyamora v. Kenya Animal Genetic Resource Centre, Formerly Central Artificial Insemination Station [2018] eKLR Nduma J (as he then was) held that:“ 21.If the resignation was not voluntary as claimed by the respondent, a reasonable employee in a senior position as was held by the claimant would tender the resignation under protest and state that the resignation was not voluntary but forced. To the contrary the letter of resignation produced by the claimant was not under protest and did not state the reasons for the resignation and whether the action was forced.” 33.The legal principle emerging from the above decision is that a resignation letter does not corroborate a claim for constructive dismissal if it does not exhibit that the employee was forced to resign by his employer. 34.I have already reproduced the claimant’s resignation letter above and it is clear the he never cited any reason for resigning or raised any grievance about the employer’s conduct or working conditions. He also never made any complaint against the employer in his demand letter dated 7th July 2020. He only demanded for his terminal dues equaling to Kshs.1,341,023 only. The issue of constructive dismissal was only raised by his lawyer in the demand letter dated 22nd July 2020 after the employer served the claimant with a summary dismissal letter dated 11th July 2020. 35.In the circumstances of this case, and having sought guidance from the above cited authorities, I find and hold that the resignation by the Claimant was voluntary and not forced by the employer’s conduct. If at all the Claimant was forced to resign by the employer’s conduct, whether in the nature of repudiatory breach or unbearable working conditions, then nothing was easier than to state that in the resignation letter. He never did that. Instead, the language used in the resignation is very diplomatic and reflects no iota of protest against the employer. Reliefs 36.Having found that the Claimant was not constructively dismissed, I hold that he is not entitled to damages for constructive dismissal equivalent to 12 months' salary. 37.However, he is entitled to certain terminal dues that accrued during his employment. Unpaid salary for June 2020 38.The Claimant prayed for salary for the month of June 2020 of Kshs. 91,994.71. The Respondent did not dispute that the Claimant worked in June 2020. The Claimant resigned on 28th June 2020. The Respondent did not produce evidence of payment of June 2020 salary. I therefore award the Claimant salary for June 2020 at Kshs. 91,994.71. One month's pay in lieu of notice 39.The Claimant's employment contract at Clause 13 provided that either party could terminate the contract by giving one month's notice in writing or payment of one month's salary in lieu of notice. The Claimant resigned with immediate effect on 28th June 2020 without giving the requisite one month's written notice. He claimed he gave oral notice, but the Respondent denied this, and no evidence was produced to support the oral notice. Since the Claimant is the one who breached the contract by failing to give notice, he cannot claim payment in lieu of notice from the Respondent. This prayer is declined. Leave pay 40.The Claimant prayed for leave pay for the period 2018 to 2019. He claimed that he never took leave. He produced a demand letter dated 7th July 2020 in which he computed his claim for leave equaling to 49 days earned less 7 days utilized leaving a net of 42 leave days. 41.The Respondent's witness stated that the Claimant applied for and was granted leave. No leave records were produced by the employer to rebut the computation by the respondent. Under Section 74(1)(f) of the Employment Act, an employer shall keep a record of an employee's annual leave entitlement, days taken and days due. The Respondent failed to produce any leave records to show that the Claimant took his leave. 42.In the case of Rogoli Ole Manadiegi v. General Cargo Services Limited [2016] KEELRC 1607 (KLR) cited by both parties, the court stated that it is the duty of the Respondent to keep employment records which would include annual leave records, but the employee must endeavour to prove his case on the balance of probability. 43.In this case the respondent did not produce leave records to rebut the computation by claimant. Therefore, I award the claimant the prayer for 42 leave daysx1/30 x Kshs.91,994.71 = Kshs. 128,791.60. Overtime and public holidays 44.The Claimant prayed for overtime from February 2018 to June 2020 amounting to Kshs. 4,527,873 and public holidays pay amounting to Kshs. 199,316. The Claimant alleged that he worked 102 hours per week and worked on all public holidays. No evidence was produced to support these allegations. No clock-in and clock-out records, no duty rosters, no witness statements from other employees who worked with him. 45.In the case of Ngunda v. Ready Consultancy Limited [2022] KECA 577 (KLR) cited by the Respondent, the court held that since the appellant did not provide any proof that he worked on public holidays or overtime, contrary to his assertions, the burden could not shift to the respondent to provide further evidence in this regard. 46.Similarly, in Mayienda v. Nyangena Hospital Limited (Appeal E030 of 2024) [2025] KEELRC 1273 (KLR) cited by the Respondent, the court held that to allege that one worked on all public holidays without supportive data is tantamount to throwing figures to the court for an award. 47.In this case, even the employer admitted that the nature and position of the claimant required that he reports to work earlier than others and leave late. The challenge I am faced with is the lack of particulars of the actual days and hours the claimant worked for extra time. The Claim is therefore generalized and incapable of being assessed into monetary terms. It is also not supported by any documentary evidence. Consequently, the claims for overtime and public holidays worked, are declined for want of particulars and evidence. Housing allowance 48.The Claimant prayed for housing allowance at 15% of his basic salary from February 2018 to June 2020 amounting to Kshs. 400,177. The Respondent contended that the salary paid to the Claimant was consolidated and all-encompassing including house allowance. 49.Section 31 of the Employment Act provides that an employer shall provide reasonable housing accommodation near the place of work or pay the employee a sufficient sum as house allowance. Paragraph 4 of the Regulation of Wages (General) Order provides that an employee who is not provided with free housing accommodation shall be paid housing allowance of fifteen percent of his basic minimum wage. 50.The Respondent's witness admitted during cross-examination that the contract did not state that the Claimant's salary was consolidated. The payslips produced do not indicate that house allowance was included in the salary. The Respondent having failed to prove that house allowance was included in a consolidated salary, I award the Claimant house allowance at 15% of his basic salary. The basic salary was Kshs. 91,994.71 per month. For the period from February 2018 to June 2020, that is 29 months (February 2018 to June 2020 inclusive). 51.However, the Claimant was employed as Branch Manager from February 2018 earning Kshs. 42,000 until his promotion to Operations Manager. The Claimant did not provide the exact date of promotion from Branch Manager to Operations Manager. The employment contract dated 6th February 2018 shows he was employed as Operations Manager at Kshs. 91,994.71. I will therefore compute housing allowance from February 2018 based on the salary in the contract. The award for housing allowance is Kshs. 91,994.71 x 15% x 29 months = Kshs. 400,177. Unremitted NSSF and service pay 52.The Claimant prayed for unremitted NSSF underpayments of Kshs. 12,740 for 2018-2020 and unremitted NSSF of Kshs. 18,880. He also prayed for service pay. Section 35(6)(d) of the Employment Act provides that an employee shall not be entitled to service pay if the employee is a member of the National Social Security Fund. The Claimant admitted that he was deducted NSSF. But submitted remittance was not regular or it was underpaid. 53.Regarding the claim for unremitted NSSF underpayments, the Respondent contended that such claims should be pursued with the NSSF statutory body. In the case of Simiyu v. Nzoia Sugar Company Limited (Employment and Labour Relations Claim E005 of 2021) [2022] KEELRC 1758 (KLR) cited by the Respondent, the court held that the claimant ought to have lodged a claim with the statutory body which has the mandate and powers to even levy penalty under section 14 of the NSSF Act. The court had no basis of interfering with the work of the statutory body on its mandate. 54.I find that the claim for unremitted NSSF contributions is a matter for the NSSF statutory body to handle. This court will not interfere with the mandate of that statutory body. 55.As regards the prayer for service pay, I find merits in it and allow it because, the NSSF statement produced by the claimant shows that the employer did not remit the NSSF contributions most of the time. Consequently, I award Kshs. 91994.71 x15/30x2 years = Kshs. 91,994.71 Certificate of service 56.The Claimant is entitled to a certificate of service under Section 51 of the Employment Act. The Respondent is ordered to issue the Claimant with a certificate of service within 30 days of this judgment. Conclusion 57.I have found that the Claimant has failed to prove constructive dismissal on a balance of probabilities but he is entitled to some terminal dues. Consequently, I enter Judgment for the Claimant against the Respondent as follows:-a.Salary for June 2020......................................Kshs. 91,994.71b.Leave of 42 days ………………………………Kshs. 128,791.60c.Housing allowance.......................................Kshs. 400,177.00d.Service pay ……………………………………….Kshs.91,994.71Total.................................................Kshs. 712,958.02 58.The Respondent is ordered to issue the Claimant with a certificate of service within 30 days of this judgment. 59.The Claimant is awarded costs and interest at court rates from the date of filing this suit. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 11TH DAY OF JUNE, 2026.ONESMUS MAKAUJUDGEAppearance:Akinyi for Wepo for ClaimantPepela for Nyongesa for Respondent