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ELRCPartially AllowedNot stated in the judgment

Sitati v SGA Security Limited (Employment and Labour Relations Appeal E218 of 2022) [2024] KEELRC 2819 (KLR)

Employment and Labour Relations Court
8 November 2024
2,305 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The appellant, a security guard employed by the respondent for over six years, appealed against the judgment of Hon. M.W Murage (Mrs), SRM delivered on 18th November 2022, which had dismissed her claim. By a memorandum of appeal dated 7th December 2022 she contended the trial court erred in failing to find constructive dismissal and in declining compensation for unlawful dismissal, overtime, untaken leave, unpaid salary for days worked in June, house allowance, public holiday pay and unpaid NHIF and NSSF deductions. The appeal was canvassed by written submissions. The appellant relied on Coca Cola East & Central Africa Ltd v Maria Ligaga and Western Excavating (ECC) Ltd v Sharp, contending that failure to assign her duties and non-payment of dues amounted to constructive dismissal. The respondent maintained she resigned voluntarily and that her wage was a consolidated daily rate compliant with the Regulation of Wages (General) (Amendment) Order 2018. The court found the appellant's letter of 22nd June 2020 did not constitute a resignation but expressed frustration at not being issued an employment letter or paid her dues, and that no one-month notice was given. Adopting the contractual test of repudiatory breach, the court held the appellant was constructively dismissed, set aside the trial court's judgment, and awarded ten months' salary compensation of Kshs.172,040/= plus Kshs.8,502/= for unpaid days in June 2020, a total of Kshs.180,542/= with interest at 14% per annum from the date of judgment until full payment. Claims for overtime, unpaid leave, house allowance and public holidays were declined as unproven. The appellant was awarded costs of the appeal and the lower court trial.

Questions the Court framed

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

  1. 1.Arising from the grounds of appeal the main issue of determination is whether the appeal is merited.
  2. 2.Whether the appellant resigned voluntarily or was constructively dismissed.
  3. 3.Whether the appellant was entitled to compensation under Section 49 of the Employment Act, overtime pay, unpaid leave, house allowance, public holiday pay and unpaid June 2019/2020 days.

Key legal issues

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01

Whether the appellant's letter of 22nd June 2020 constituted a voluntary resignation or constructive dismissal

Holding

The letter did not constitute a resignation; the appellant was forced to resign by the respondent's conduct, establishing constructive dismissal.

Reasoning

The court perused the letter dated 22nd June 2020 and found it expressed frustration over non-issuance of an employment letter rather than a resignation; it bore no title of resignation and no one-month notice was given. Applying the contractual (repudiatory breach) test in Coca Cola East & Central Africa Ltd v Maria Ligaga and Western Excavating v Sharp, the court found failure to assign duties and non-payment of dues after six years of service amounted to a repudiatory breach forcing the resignation.

p. 4
02

Whether the appellant was entitled to compensation under Section 49 of the Employment Act

Holding

Yes; ten months' salary compensation of Kshs.172,040/= was awarded.

Reasoning

Having found constructive dismissal established, the court invoked its power to award compensation and fixed it at ten months of the monthly salary of Kshs.17,204, alongside the unpaid June 2020 days, and declined the unproven heads of overtime, leave, house allowance and public holidays.

p. 5

Legal principles established

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  • Constructive dismissal is established where the employer's conduct constitutes a repudiatory breach of the employment contract and the employee leaves in response to that conduct.
  • Failure to assign an employee any duties and non-payment of dues, without even issuing an employment letter, can amount to constructive dismissal.

Court orders

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  1. 1.The judgment of the trial court delivered on 18th November 2022 is set aside.
  2. 2.Compensation of ten (10) months' salary amounting to Kshs.172,040/= awarded.
  3. 3.Kshs.8,502/= awarded for unpaid days in June 2020.
  4. 4.Overtime, unpaid leave, house allowance and public holidays claims declined as not proven.
  5. 5.Total award of Kshs.180,542/= plus interest at court rates at 14% per annum from date of judgment till full payment.
  6. 6.Costs of the appeal and of the lower court trial awarded to the appellant.

The bench

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

Wrote the judgment

On appeal from
Senior Resident Magistrate's Court (Hon. M.W Murage (Mrs), SRM)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment in an employment claim (Employment and Labour Relations Court); specific enabling provision not cited in the judgment

Relief refused

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Overtime pay

Not proven; the court concurred with the trial court.

p. 5

Unpaid leave for 6 years 6 months

Not proven.

p. 5

House allowance

Not proven; salary apparently consolidated per statutory wage rates.

p. 5

Public holiday pay

Not proven.

p. 5

Costs

The appellant is awarded costs of the appeal as well as costs of the lower court trial.

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.

In view of the foregoing, this Honourable Court hereby finds a case of constructive dismissal has been established. The judgment of the trial court delivered on 18th November 2022 is therefore set aside
p. 5Finding of constructive dismissal and setting aside of trial judgment
The total award is Kshs.180,542/= plus interest at court rates at 14% per annum from date of judgment till full payment.
p. 5Final orders - quantum and interest
The appellant is awarded costs of the appeal as well as costs of the lower court trial.
p. 5Costs
the employer’s conduct should be so grave that it constituted a repudiatory breach of contract of employment – this is the contractual test.
p. 4Test for constructive dismissal adopted from Coca Cola v Ligaga

Issues in the judgment

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minor

The memorandum of appeal refers to non-assignment of duties from '13th June, 2024' although the resignation letter is dated 22nd June 2020; likely a typographical error in the judgment.

minor

The case name is spelled inconsistently within the judgment: 'Western Excavating (ECC) Ltd V Sharp [1978] QB 761' versus 'Western Excavating (ECC) Ltd -vs- Shapr (1978) QB 78'.

minor

The grounds of appeal reference unpaid salary for days worked in June 2019, while the award is for unpaid days in June 2020.

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, "Sitati v SGA Security Limited (Employment and Labour Relations Appeal E218 of 2022) [2024] KEELRC 2819 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2819/eng@2024-11-08

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