A. INTRODUCTION

Imagine this scenario: a disciplinary hearing is scheduled in a few days, and the employee has formally been invited by HR to attend. Then, just a day before the hearing, the employee sends a brief email:

“kindly accept this as my resignation with immediate effect.”

For many employees facing allegations of workplace misconduct, resignation can appear to be a convenient exit strategy. By terminating the employment relationship before the disciplinary process concludes, the employee hopes to avoid potential consequences, including dismissal for gross misconduct, loss of benefits, and reputational damage.

But does the does the law actually permit this?

It has become increasingly common for employees to resign in an effort to pre-empt or evade disciplinary proceedings. This practice raises a critical legal question:

Can an employee lawfully resign to evade disciplinary action?

This question has generated significant debate among employers, HR professionals, and legal practitioners, particularly following the decision of the Court of Appeal in Peter Chege vs Timsales Limited (2025) eKLR.

Some commentators have interpreted the judgment to mean that resignation cannot be used to defeat disciplinary proceedings. Others remain uncertain about the precise legal implications of the decision.

This article unpacks the legal framework governing resignation in Kenya and examines what the courts have actually settled on the question of whether an employee may resign while facing disciplinary action.

B. LEGAL FRAMEWORK GOVERNING EMPLOYEE RESIGNATION IN KENYA

To answer the question posed above, it is important to first understand the legal basis for resignation under Kenyan Law.

Resignation is one of the recognized modes of terminating a contract of service in Kenya. Although not expressly defined in statute, it is grounded in the provisions of the Employment Act, 2007.

Sections 35 & 36 of the Act provide the statutory basis for termination of employment by either party through notice or payment in lieu of notice.

Termination by Notice

Section 35 of the Employment Act, 2007 requires employees paid monthly to issue at least 28 days’ written notice before terminating employment. It provides as follows:

where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing.

Payment in Lieu of Notice

Section 36 on the other hand, allows either party to terminate the contract of employment without issuing notice, provided that the terminating party pays the other party the equivalent salary for the notice period.

The said section provides as follows:

“Either of the parties to a contract of service to which section 35(5) applies, may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect of the period of notice required to be given under the corresponding provisions of that section.”

Collectively, these provisions establish a fundamental principle of Kenyan employment law:

Either party to an employment contract has the right to terminate the relationship by issuing notice or paying salary in lieu of such notice. However, where termination is initiated by the employer, the law imposes more stringent procedural and substantive safeguards that the employer must satisfy before lawfully terminating the employment relationship

C.WHAT THE COURTS HAVE SAID

Kenyan Courts have consistently characterized resignation as a unilateral act.

In principle, resignation does not require acceptance by the employer to be effective. Once an employee properly communicates their decision to resign in accordance with statutory or contractual notice requirements, the employer cannot simply reject the resignation.

However, Courts have had to confront a critical question:

At what point does an employer cease to have authority/jurisdiction to subject an employee to disciplinary proceedings for alleged workplace misconduct?

The case of Chege v Timsales Ltd (Civil Appeal 29 of 2020)[2025] KECA 1660 (KLR)

Brief Facts of the Case:

The Appellant was an employee of the respondent and a member of a trade union.

In July 2018, employees of the respondent demanded payment of delayed salaries and were subsequently locked out after allegedly participating in an unprotected strike. The Union Challenged the lockout in the Employment and Labour Relations Court (ELRC) but the Court dismissed the claim and authorized the respondent to proceed with disciplinary action.

Following the ruling the respondent(the employer) issued notices to show cause to the affected employees, including the appellant.

Before the disciplinary process was concluded, the appellant(the employee) purported to retire under clause 18 of the collective bargaining agreement (CBA), which allowed retirement at the age of 47  years. He claimed that he served a retirement notice dated 30^th June 2019.

The employer denied receiving the notice and proceeded to dismiss him for misconduct.

The appellant subsequently filed suit before the Employment and Labour Relations Court seeking declarations that his retirement was valid and that the disciplinary process was null and void.

The ELRC dismissed the claim, holding that retirement could not be used to sanitize misconduct or defeat a lawful disciplinary process. Dissatisfied with the decision, the appellant appealed to the Court of Appeal.

Issues for determination:

1. Whether an employee could lawfully issue a retirement or resignation notice to defeat or evade pending disciplinary proceedings.
2. Whether the respondent had a valid and lawful basis to subject the grievants to a disciplinary process in accordance with the collective bargaining agreement and the Employment Act.
3. Whether an employee who sought to retire to escape disciplinary consequences for gross misconduct was entitled to rely on the CBA to claim retirement benefits or gratuity.

Holding of the Court

The Court of Appeal affirmed the trial Court’s decision that a retirement notice cannot be allowed to evade lawfully disciplinary proceedings if that notice itself is invalid due to non-compliance with a binding Court directive, statutory and CBA notice requirements.

However, this case should be read in the context of its very specific facts.

Two key factors influenced the Court’s decision:

First, there existed a binding court order directing the employees to undergo disciplinary proceedings under the CBA and the Employment Act before resuming work.

The appellate court noted that a ruling delivered on 21 June 2019 by Justice Jane Onyango expressly directed the affected employees to undergo disciplinary proceedings. That ruling was never appealed.

By attempting to retire before complying with the court-sanctioned directive, the appellant effectively acted in defiance of a binding court order.

Second, the court found that the appellant’s purported retirement notice did not comply with the mandatory statutory and CBA notice requirements.

For these reasons, the court held that the retirement notice was invalid and incapable of defeating the disciplinary process.

Our view, as will be demonstrated by the authorities discussed below, is that but for the existence of the binding court directive compelling the appellant to undergo the disciplinary process, nothing in law would have prevented the employee from resigning with immediate effect, provided that the resignation complied with the applicable statutory, contractual, and CBA requirements.

The current legal framework governing employment relationships in Kenya permits either party to terminate the contract of service by issuing the requisite notice prescribed in the contract of employment or by making payment in lieu of such notice, as contemplated under Sections 35 and 36 of the Employment Act.

Consequently, it is our considered view that the growing perception that an employee cannot resign with immediate effect, or cannot resign in circumstances where disciplinary proceedings are pending, is not grounded in the existing statutory framework governing employment relationships in Kenya.

Rather, the decision in Peter Chege v Timsales Limited must be understood within its specific factual matrix,  particularly the existence of a binding court directive and the appellant’s failure to comply with the mandatory notice requirements under the statute and the collective bargaining agreement.

This interpretation is consistent with earlier jurisprudence of the Employment and Labour Relations Court, which has repeatedly affirmed that resignation remains a unilateral act capable of terminating the employment relationship where the statutory and contractual requirements are satisfied.

Our position finds further support in the jurisprudence discussed below.

Supporting Jurisprudence

a) Kennedy Obala Oaga v Kenya Ports Authority [2018] KEELRC 2247 (KLR)

This case established the position that if an employee takes the proper steps to validly terminate the employment relationship ie (by providing notice or payment in lieu of notice), even if done solely to escape disciplinary consequences, the employment relationship lawfully ceases, and the employer losses the jurisdiction to subsequently discipline or dismiss the individual.

In this case, the Claimant resigned after being heard by the Disciplinary Committee of the Respondent, but before the Committee gave its verdict, he tendered his resignation with immediate effect and opted to pay the Respondent one (1) month’s salary in lieu of notice.

The court held as follows:

resignation by an Employee from employment is basically termination of employment at the instance of the Employee. It is a unilateral act

The Court further emphasized that the Employment Act does not restrict an employee from terminating employment before, during, or after disciplinary proceedings, provided the requirement on notice are complied with.

 The Employment Act does not require the Employer to accept a notice of termination issued by the Employee, for that notice to take effect.

The Employment Act does not bar, or in any way limit an Employee, from terminating his/her contract of employment before, during or after, a disciplinary hearing.

There is no limitation imposed on an Employee who desires to terminate his contract of Employment under Section 35 and 36 of Employment Act 2007, except that termination is preceded by a written notice, or pay in lieu of notice.

The Court has not come across any provision limiting the right of termination in the Employment Act 2007, the Kenya Ports Authority Act Cap 391 the Laws of Kenya, the Disciplinary Handbook, and the Human Resource Manual, which governed the Claimant’s contract of employment. There is no clause, or provision, compelling an Employee to put off his decision to leave employment before the outcome of a disciplinary process initiated against him.”

The existing legal framework enables Employees to resign and place themselves beyond the disciplinary authority of their Employers.”

 

Importantly, the court observed that employees often resign during disciplinary processes to avoid consequences such as loss of benefits, stigma associated with dismissal for gross misconduct, and diminished employability.

“ It is common for Employees who commit acts of gross misconduct, such as the Claimant herein, to tender resignation to avoid the consequences of their acts. Such consequences include denial of terminal benefits; stigma associated with dismissal for gross misconduct; and diminished employability.

The Claimant resigned because he felt by doing so, he would avoid or mitigate the consequences of summary dismissal.

 b) Ayonga v Falcon Signs Ltd Cause 878 of 2017 KEELRC 300 KLR

 Similarly in this case, the court affirmed that resignation is one of the recognized modes of terminating the employer-employee relationship. The court held as follows:

resignation is one of the modes of terminating the employer-employee relationship. It is a tool that is available to an employee to trigger his separation from the employer. Being a unilateral act, the employee who wishes to sever the employer-employee relation can elect to serve the employer with resignation. The resignation may be expressed to take effect either immediately or at a later date as indicated by the employee. Once an employee communicates the decision to resign from employment, the contract of employment is effectively terminated. The validity of the resignation is not dependent on the employer accepting it.

At the same time, an employee is under no obligation to justify the decision to resign from employment. All that he is required to do is provide the requisite notice to terminate the contract or make payments in lieu of such notice.

The above case underscores our argument that once an employee communicates their decision to resign from employment, the employment contract of employment is effectively terminated depending on whether the resignation is to take immediately (wherein they will be required to payment their employer in lieu of the notice) or at a later date as prescribed in their contract of employment.

The Courts have also noted that rejecting an employee’s resignation may be amount to forcing an employee into continued employment, which would be inconsistent with the prohibition against forced labour under Article 30 of the Constitution of Kenya 2010.

D.JURISDICTION TO CONTINUE DISCIPLINARY PROCEEDINGS

The Courts have drawn an important distinction between resignation by notice and resignation with immediate effect.

Where the employee has given notice and is serving a notice period, the employment relationship continues and the employer retains the jurisdiction/authority to discipline the employee until the notice period ends.

However, where resignation is with immediate effect, and the employee has paid the employer for the notice period in lieu then the employer ceases to have jurisdiction or authority to commence or continue with disciplinary proceedings against that employee.

This principle was articulated in the South African decision of  Mtati v. KPMG (Pty) Ltd (2017 which has been was cited with Approval in the case of Kennedy Obala (cited above).

The South African Labour Court in the case held that the authority to discipline an employee is grounded in the existence of an employment relationship. Once that relationship terminates, the employer’s disciplinary jurisdiction ceases.

an employee’s immediate resignation deprives the employer of jurisdiction to continue disciplinary proceedings. The court emphasized that authority to discipline is based on the existence of an employment contract, which ends upon immediate resignation. The Court, however, distinguished the consequences of immediate resignation and resignation by notice on a pending disciplinary process. If the employee has given notice and is serving the notice period, the employer retains jurisdiction to discipline the employee until the notice period ends.

The basic principle, as I understand it, is that the fact that an employee has given notice to terminate the employment contract does not take away the power of the employer to discipline him or her whilst serving the notice period. In other words, if an employee is serving notice he or she is still subject to the authority and the power of the employer in as far as the employment relationship is concerned.

E. PRACTICAL REMEDIES TO EMPLOYERS

Although the law allows employees to resign during disciplinary proceedings as established, Courts have acknowledged that this creates a regulatory gap that can be exploited.

In the case of Kennedy Obala Oaga cited above, the Court shed some light on the reason behind an employee resigning during a disciplinary process in the following terms:

It is common for Employees who commit acts of gross misconduct, such as the Claimant herein, to tender resignation to avoid the consequences of their acts. Such consequences include denial of terminal benefits; stigma associated with dismissal for gross misconduct; and diminished employability.The Claimant resigned because he felt by doing so, he would avoid or mitigate the consequences of summary dismissal.

 The Court notes that for employees who commit acts of gross misconduct, they tend to tender resignation in order to avoid the consequences of their act which would include denial of terminal benefits, stigma associated with dismissal for gross misconduct and diminished employability.

Accordingly, the Court in the case suggested practical measures employers can adopt to address this challenge. The Court advised employers to consider including provisions in their Human Resource Manuals and Employee Contracts, stating that employees who resign while facing disciplinary proceedings shall not be entitled to certain terminal benefits which would otherwise be payable on regular termination such as notice and severance pay.

F.CONCLUSION

The debate surrounding resignation during disciplinary proceedings is often clouded by misconceptions.

The decision in Peter Chege v Timsales Limited did not establish a blanket rule that the employees cannot resign to avoid disciplinary action.

The broader legal position remains clear: Employees retain the right to terminate their employment by issuing notice or paying salary in lieu of notice.

However, the legal consequences depend on how the resignation is effected.Where resignation is issued by notice, the employer retains disciplinary jurisdiction during the notice period.
Where resignation takes effect immediately through payment in lieu of notice, the employment relationship ends and the employer’s disciplinary authority ceases.

At SSM Law Advocates, we provide comprehensive legal support in all matters relating to employment and labour law. Our team of skilled employment lawyers advises both employers and employees on the drafting, review, and enforcement of employment contracts including probationary and permanent contracts. We ensure that the employment contracts of our clients are fully compliant with the Employment Act, the Constitution, and evolving judicial interpretations. Whether you’re looking to implement sound HR practices, navigate employee laws, or resolve workplace disputes, we help you mitigate risk, maintain regulatory compliance, and uphold fair labour standards at every stage of the employment relationship.

If you would like to consult on this article or any other legal issue, you may contact our legal team  through smusembi@ssmlawadvocates.com; pgatua@ssmlawadvocates.com

Contributors

Gloria Samba.-Trainee Advocate

Peter Njoroge Gatua-Associate Advocate

 Disclaimer

This article is for informational purposes only and should not be construed as legal advice.