As a general rule, an employee does not have the right to unilaterally withdraw his/her resignation. However, there are special circumstances where this rule does not apply. The High Court in Edwin Beiti Kipchumba v National Bank of Kenya Limited [2018] eKLR observed that the existence of special circumstances, such as the pressure on the employee, lack of a cooling off period and the short time taken to withdraw the resignation constituted a valid reason for the withdrawal of his resignation. In making its determination, the court cited two other cases:

  1. McManus V. Brian Mccarthy Contractors, in which the Irish Employment Tribunal found that a letter withdrawing a notice of resignation made by an employee was binding to the employer after considering the context in which the resignation was made; and
  2. Kwik-fit (GB) Limited V. Lineham (1992) where it was held that the factors that the court considered for the withdrawal of the notice of resignation included whether an employee made the decision in the heat of the moment, existence of special circumstances such as pressures on the employee or the employee’s personality, and whether the situation was reversible. The court also held that the withdrawal of the notice of resignation ought to be communicated to the employer, as soon as possible, and within a reasonable time from the date of resignation, for such withdrawal to be acceptable.

As such, Kenyan employers should investigate circumstances underlying resignation of employees as well as the time taken to withdraw the resignation notice before making a determination of whether or not to accept the withdrawal of resignation presented before them.

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