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
4. 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.
5. 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.
6. 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.
7. Both parties thereafter filed final written submissions, the Claimant's in around April 2026, 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
8. 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.
9. 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.
10. 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.
11. She pleaded that matters escalated in October 2016 over the handling of a shipment for a 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.
12. 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.
13. 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.
14. 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
15. 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.
16. 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 reorganise 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.
17. 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.
18. 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.
19. 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
20. 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."
21. 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.
22. 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
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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:
(a) What is the evidential landscape properly before this Court, having regard to the Respondent's decision not to call any witness?
(b) 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?
(c) Whether the Claimant's electronic documentary evidence is rendered inadmissible for want of a certificate under section 106B(4) of the Evidence Act.
(d) 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.
(e) Whether section 47(5) of the Employment Act applies to a claim of constructive dismissal.
(f) Whether, on the evidence, the Claimant was constructively dismissed from her employment.
(g) Whether the Claimant is entitled to the reliefs sought, and if so, in what amounts.
(h) Whether the counterclaim is sustainable.
(i) Who bears the costs of the claim and of the counterclaim?
H. ANALYSIS AND DETERMINATION
(i) The evidential landscape
33. 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.
34. 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.
35. 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.
37. 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
38. 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.
39. 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
40. The Respondent's submissions on this point, though they correctly recite the law, are, in my view, unconvincing in the circumstances of this case, and I decline to hold that the Claimant's documentary evidence is inadmissible on this ground.
41. Section 106B(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.
42. 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 ha
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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
4. 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.
5. 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.
6. 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.
7. Both parties thereafter filed final written submissions, the Claimant's in around April 2026, 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
8. 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.
9. 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.
10. 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.
11. She pleaded that matters escalated in October 2016 over the handling of a shipment for a 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.
12. 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.
13. 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.
14. 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
15. 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.
16. 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 reorganise 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.
17. 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.
18. 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.
19. 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
20. 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."
21. 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.
22. 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
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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:
(a) What is the evidential landscape properly before this Court, having regard to the Respondent's decision not to call any witness?
(b) 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?
(c) Whether the Claimant's electronic documentary evidence is rendered inadmissible for want of a certificate under section 106B(4) of the Evidence Act.
(d) 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.
(e) Whether section 47(5) of the Employment Act applies to a claim of constructive dismissal.
(f) Whether, on the evidence, the Claimant was constructively dismissed from her employment.
(g) Whether the Claimant is entitled to the reliefs sought, and if so, in what amounts.
(h) Whether the counterclaim is sustainable.
(i) Who bears the costs of the claim and of the counterclaim?
H. ANALYSIS AND DETERMINATION
(i) The evidential landscape
33. 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.
34. 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.
35. 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.
37. 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
38. 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.
39. 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
40. The Respondent's submissions on this point, though they correctly recite the law, are, in my view, unconvincing in the circumstances of this case, and I decline to hold that the Claimant's documentary evidence is inadmissible on this ground.
41. Section 106B(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.
42. 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 ha
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