Leena Apparels (EPZ) Limited v Nyevu Juma Ndokolani [2018] KECA 308 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is constructive dismissal from employment and when does it occur?
- 2.Whether the respondent was constructively dismissed or had wilfully absconded duty
- 3.Whether the trial Judge erred in the assessment and award of damages
Key legal issues
#Definition and ingredients of constructive dismissal
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.
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).
Whether the appellant's conduct amounted to constructive dismissal of the respondent
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.
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.
Whether the appellate court should interfere with the award of damages
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.
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.
Statutory anchor of constructive dismissal claims
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.Respondent awarded costs of the appeal
- 3.Judgment and decree of the ELRC (award of Kshs. 120,505 with costs and interest) upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#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
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
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
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
an assessment of damages cannot merely be upset simply because another Judge would have issued a lesser award
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Towett v Teachers Service Commission (Claim E030 of 2023) [2025] KEELRC 3715 (KLR)[2025] KEELRC 3715 (KLR)16 Dec 2025
- Bins (Nairobi) Services Limited v Hardard Macharia Kariamburi (Civil Appeal E670 of 2024) [2025] KECA 1726 (KLR)[2025] KECA 1726 (KLR)24 Oct 2025followed
- Milly Fruit Processors Limited v Matete (Appeal E006 of 2025) [2025] KEELRC 1237 (KLR)[2025] KEELRC 1237 (KLR)30 Apr 2025applied
Cite this brief
#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.