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Court of AppealDismissedCivil Appeal No. 19 of 2018

Leena Apparels (EPZ) Limited v Nyevu Juma Ndokolani [2018] KECA 308 (KLR)

Court of Appeal
27 September 2018
2,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that turning an employee away and demanding they drop a compensation claim is constructive dismissal.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja & Koome JJ.A) dismissed an employer's appeal against a finding of constructive dismissal. The respondent, employed as a helper from February 2015, suffered an industrial accident and instructed advocates to pursue compensation. Over the Christmas break the appellant sent her home; when she reported on 4th January 2016 she was turned away and told to return on 11th January, then again in February 2016. She alleged she was told she would never work for the appellant unless she withdrew her compensation claim. The ELRC at Mombasa (Makau, J) found constructive dismissal and awarded her Kshs. 120,505 with costs and interest. The appellant argued she had absconded duty and that the trial judge ignored its letter of 8th February 2016. The Court, deciding the sole issue of constructive dismissal, corrected counsel's reliance on Section 12 of the Labour Institutions Act (repealed by Section 31 of the Industrial Court Act) and anchored the doctrine in common law and Article 41(1) of the Constitution. Adopting Western Excavating v Sharp, it held the employer's conduct amounted to a repudiatory breach; the primary inquiry is the employer's conduct, not the employee's, and the February letter was a belated attempt to regularise an already repudiated contract. The Court declined to interfere with the damages award, the appellant not having challenged it, and dismissed the appeal with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.What is constructive dismissal from employment and when does it occur?
  2. 2.Whether the respondent was constructively dismissed or had wilfully absconded duty
  3. 3.Whether the trial Judge erred in the assessment and award of damages

Key legal issues

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01

Definition and ingredients of constructive dismissal

Holding

Constructive dismissal arises where the employer's conduct amounts to a significant/repudiatory breach going to the root of the employment contract, whether or not intentional or in bad faith.

Reasoning

The Court adopted the classic formulation in Western Excavating (ECC) Ltd v Sharp, holding that where the employer shows it no longer intends to be bound by essential terms of the contract, the employee may treat himself as discharged and terminate by reason of the employer's conduct. The conduct must be sufficiently serious to entitle the employee to leave at once, but bad faith or intention is not required (Office v Roberts).

p. 3
02

Whether the appellant's conduct amounted to constructive dismissal of the respondent

Holding

Yes. Repeatedly turning the respondent away and conditioning her return on withdrawing her compensation claim repudiated the contract; the letter of 8th February 2016 was a belated attempt to regularise an already repudiated contract.

Reasoning

The respondent reported for duty on 4th January 2016 but was sent home for reasons beyond her control; postponements of her return followed. As at 4th January she was entitled to treat the contract as repudiated. The subsequent 'desertion' letter written a week later could not un-ring the bell, so the trial Judge's finding of constructive dismissal could not be faulted.

p. 3
03

Whether the appellate court should interfere with the award of damages

Holding

No. The appellant did not challenge the damages award; absent demonstration of improper or injudicious exercise of discretion, the award of Kshs. 120,505 stands.

Reasoning

The Court noted it interferes very sparingly with discretionary decisions of the trial court, citing Mary Njoki v John Kinyanjui Mutheru, S.M. v E.N.B. and Mbogo v Shah. No misdirection, misapprehension of evidence or wrong principle was demonstrated, and an assessment of damages cannot be upset merely because another judge would have awarded less.

p. 3
04

Statutory anchor of constructive dismissal claims

Holding

Section 12 of the Labour Institutions Act (No. 12 of 2007), relied on by the appellant's counsel, was repealed by Section 31 of the Industrial Court Act (No. 20 of 2011); constructive dismissal rests on common law and Article 41(1) of the Constitution.

Reasoning

Counsel submitted that constructive dismissal finds recognition under Section 12 of the Labour Institutions Act, but the Court corrected this, noting the provision's repeal, and anchored the doctrine instead in common law (Western Excavating; Nottingham County Council) and the constitutional right to fair labour practices.

p. 2

Legal principles established

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  • On a first appeal the Court of Appeal must re-evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • Constructive dismissal occurs where the employer's conduct constitutes a repudiatory breach going to the root of the contract, entitling the employee to treat himself as discharged; the conduct must be sufficiently serious, though it need not be intentional or in bad faith.
  • In constructive dismissal, the primary inquiry is the conduct of the employer, not the conduct of the employee, unless waiver, estoppel or acquiescence is in issue.
  • An appellate court will not lightly interfere with the trial court's discretionary assessment of compensation absent misdirection, failure to appreciate the evidence, or manifest wrongness causing injustice.
  • Constructive dismissal remains recognised in Kenya under common law and finds constitutional anchor in Article 41(1) on fair labour practices; Section 12 of the Labour Institutions Act having been repealed by Section 31 of the Industrial Court Act.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Respondent awarded costs of the appeal
  3. 3.Judgment and decree of the ELRC (award of Kshs. 120,505 with costs and interest) upheld

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
On appeal from
Employment and Labour Relations Court at Mombasa
E&LRC Cause No. 624 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Employment and Labour Relations Court appellate framework (provision not expressly stated in the judgment)

Relief refused

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Appellant's prayer to set aside the finding of constructive dismissal and the damages award

The Court found no error in the trial Judge's conclusions and no improper exercise of discretion in assessing damages

p. 3

Costs

Appeal dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the aforesaid reasons we find the appeal lacking in merit and we order it dismissed with costs to the respondent
p. 3Final orders - dismissal of appeal with costs
in constructive dismissal, the issue is primarily the conduct of the employer and not the conduct of employee – unless waiver, estoppel or acquiescence is in issue
p. 3Focus of constructive dismissal inquiry
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
p. 2Definition of constructive dismissal (adopted from Western Excavating v Sharp)
to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way
p. 2Duty of the Court of Appeal on first appeal
an assessment of damages cannot merely be upset simply because another Judge would have issued a lesser award
p. 3Appellate restraint on quantum of damages

Issues in the judgment

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minor

The judgment refers to 'Section 49(1) (c) above' as the basis for the trial court's discretion on compensation, but the governing statute (apparently the Employment Act) is never named in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Leena Apparels (EPZ) Limited v Nyevu Juma Ndokolani [2018] KECA 308 (KLR)", Case Analysis (2018). Civil Appeal No. 19 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/308/eng@2018-09-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.