Kihara v Almasi Bottlers Limited & another (Civil Appeal E225 of 2021) [2025] KECA 1893 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that employees claiming constructive dismissal must prove the employer fundamentally broke the contract before they resign.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's dismissal amounted to constructive dismissal
- 2.Whether the disciplinary process violated the principles of procedural fairness
- 3.Whether the appellant was subjected to unfair trial in breach of Article 50 of the Constitution
- 4.Whether the trial court erred in declining to award the reliefs sought
Key legal issues
#Whether the appellant proved constructive dismissal
The appellant did not establish constructive dismissal; his resignation was voluntary with no contemporaneous grievance, and the burden of proving repudiatory breach lay on him and was not discharged.
Applying the Coca-Cola principles, the court applied an objective test and found no fundamental breach of essential contract terms. The alleged grievances (transfers, lack of job description, verbal abuse) were raised only after resignation, breaking causation. The resignation letter was a conventional notice, and the employee sought leave during notice, indicating amicable separation. Subjective perception alone cannot found constructive dismissal.
Whether the disciplinary process violated procedural fairness
The process was fair; although fresh charges emerged at the hearing, the ELRC rightly declined to rely on them and dismissal was upheld solely on the notified charge of absconding duty.
Section 41 of the Employment Act requires notice and hearing. The appellant received a show cause letter, responded in writing, attended a disciplinary hearing and was informed of his rights. Following Postal Corporation of Kenya v Andrew K. Tanui, substantial compliance with procedural safeguards suffices, and the ELRC disallowed reliance on the unnotified charges.
Whether the appellant was denied a fair trial in breach of Article 50 of the Constitution by the change of trial judges
The complaint failed; having found the hearing fair, the court saw no basis for the Article 50 claim, which was raised only in submissions.
The court noted the allegation that Radido J took over from Nduma J and allowed the respondents to file witness statements. Since the court had already found that the appellant was accorded a fair hearing before dismissal, it could not simultaneously find the trial unfair. The point had not been raised earlier than submissions.
Whether the trial court erred in declining to award reliefs
No error; remedies must align with findings of unlawful or unfair dismissal, and no violation was proved.
Following the Supreme Court's decision in Kenya Airways Limited v Aviation & Allied Workers Union, remedies under section 49 of the Employment Act follow only a proved violation. Since the appellant voluntarily resigned and was dismissed for absconding duty after a fair process, there was no basis to disturb the ELRC's dismissal of the claim.
Legal principles established
#- Constructive dismissal requires proof of a repudiatory breach going to the root of the employment contract, established objectively and causally linked to the resignation, with the burden on the employee.
- Where an employer substantially complies with the procedural safeguards of notice, hearing, and opportunity to respond under section 41 of the Employment Act, the disciplinary process is fair even if fresh allegations emerge, provided the dismissal is not founded on those fresh allegations.
- Remedies for termination of employment under section 49 of the Employment Act may only be granted upon proof of an unlawful or unfair dismissal.
- On a first appeal, the Court is entitled to re-evaluate the evidence and reach its own conclusions, though not by disregarding the trial court's findings.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Kisumu
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment characterises the matter as 'a first appeal'), reviewing the ELRC judgment of 16th June 2021
Relief refused
#Damages for constructive and unfair termination
The appellant voluntarily resigned and failed to establish constructive dismissal or breach of procedural fairness; remedies under section 49 of the Employment Act must follow a proved violation
Salary arrears for July and August 2018
No services were rendered during the period, hence no salary was due
Refund of alleged unlawful deductions (car loan overpayment of Kshs.100,000)
No evidence substantiated the alleged refund
Costs
The appeal was dismissed with costs to the respondents.
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 foregoing reasons, we find the appeal is wholly unmerited. It is hereby dismissed with costs to the respondents.
The key test... is whether the employer’s conduct amounted to a repudiatory breach going to the root of the contract, thereby rendering continued employment intolerable.
Where an employer substantially complies with the procedural safeguards—notice, hearing, and opportunity to respond—the process is deemed fair.
remedies under section 49 of the Employment Act must follow a proved violation of rights.
a first appeal is by way of a retrial where this Court is mandated to re-evaluate the evidence on record, examine and analyze it in order to reach its own conclusions...
Constructive dismissal, as restated in the Coca-Cola case, cannot be founded on subjective perception alone.
Issues in the judgment
#The judgment contains an internal inconsistency regarding the basis of dismissal: the ELRC found the appellant had voluntarily resigned and simultaneously upheld a summary dismissal for absconding duty, and this Court affirmed both findings without reconciling them.
The Article 50 trial-fairness complaint is disposed of on the basis that a fair disciplinary hearing was held, but a fair disciplinary process before an employer is conceptually distinct from a fair trial before the ELRC court; the judgment does not directly address the alleged judicial-handover irregularity on its merits.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihara v Almasi Bottlers Limited & another (Civil Appeal E225 of 2021) [2025] KECA 1893 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1893/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.