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Court of AppealDismissedCivil Appeal No. E224 of 2021· [2026] KECA 1949 (KLR)

Andrew Odongo Omondi v Coca Cola Equator Bottlers Ltd

Court of Appeal
25 September 2026
KMK. M'InotiEME. C. MwitaBOB. Ongaya
3,900 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 an employee who resigns without protesting contract changes cannot later claim constructive dismissal.

What this practically means

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Executive summary

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The appellant, employed by the respondent as a sales representative (later designated accounts developer) by a letter dated 30th October 2010, resigned on 22nd December 2017 and sued the respondent in the ELRC at Kisumu for constructive dismissal, unlawful deductions, pay in lieu of notice and a certificate of service. By a judgment dated 10th February 2021, Radido, J. dismissed the claim, finding the appellant had not proved constructive dismissal, and directed only issuance of a certificate of service. On appeal, the appellant reduced seven grounds to a single issue: whether the ELRC erred in holding that he was not constructively dismissed. He argued that unilateral assignment of financial duties outside his job description breached the contract and created a hostile work environment. The respondent countered that the contract expressly permitted transfers, reassignment of duties and variation of working hours, that the appellant never complained, and that his resignation letter thanked the employer. The Court of Appeal, in a unanimous first-appeal judgment, reappraised the evidence and affirmed the ELRC. It held that variations in place of work, duties and hours expressly contemplated by the contract could not of themselves constitute fundamental breach; that the appellant led no evidence of duties outside his job description, insults, or complaints to the employer; and that his conciliatory resignation letter indicated voluntary resignation, possibly prompted by a written performance warning. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appellant proved constructive dismissal

Holding

The appeal fails; the appellant did not discharge the burden of proving constructive dismissal.

Reasoning

The contract expressly contemplated transfer anywhere in Kenya, assignment of duties not usually associated with normal work, amendment of working hours and unpaid extra hours. Variations within the parties' contemplation cannot be fundamental breach. The appellant led no evidence of duties outside the job description, insults, or complaints to the employer, and his resignation letter thanked the employer, indicating voluntary resignation.

p. 34
02

Whether unilateral assignment of new duties amounted to significant breach going to the root of the contract

Holding

No, because the contract reserved the employer's right to transfer the employee to other positions and duties and to assign duties not specified.

Reasoning

Distinguishing Cardinal Otunga High School v Khaemba, where the cateress had no such contractual flexibility clause, the Court held that here the alleged variations were expressly agreed. To be fundamental, variations had to be beyond what the parties contemplated and agreed.

Legal principles established

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  • Variations in place of work, duties and working hours that are within the contemplation and agreement of the parties cannot of themselves constitute fundamental breach of the employment contract.
  • On a first appeal the Court must exhaustively reappraise the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses.
  • An employee alleging constructive dismissal bears the burden of proving a fundamental breach going to the root of the contract, resignation in response to it, and absence of waiver.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
On appeal from
Employment and Labour Relations Court at Kisumu
ELRCC No. 299 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal under the Employment and Labour Relations Court Act/Court of Appeal jurisdiction (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Andrew Odongo Omondi v Coca Cola Equator Bottlers Ltd", Case Analysis (2026). Civil Appeal No. E224 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1949/eng@2026-09-25

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