Mutua v Mastermind Tobacco Kenya Limited (Appeal E006 of 2023) [2025] KEELRC 1700 (KLR)
The bottom line
#A Kenyan court ruled COVID-19 unpaid leave was mutually agreed, not constructive dismissal, and an employee is only entitled to a certificate of service.
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 continuous forced unpaid leave amounted to constructive dismissal
- 2.Whether the respondent followed the lawful redundancy procedure under section 40 of the Employment Act
- 3.Whether the unpaid leave was unilaterally imposed or mutually agreed in view of COVID-19
- 4.Whether the appellant was entitled to service pay, leave pay, house allowance, underpayments and salary arrears
- 5.Whether the trial court's judgment should be disturbed
Key legal issues
#Constructive dismissal by forced unpaid leave
No constructive dismissal; the unpaid leave was mutually agreed due to COVID-19 and its extension was justified as the sole cause persisted
The appellant was an in-person worker whose role could not be performed remotely after the factory shutdown caused by COVID-19. The Court found the leave was agreed, not unilaterally imposed, and that extension was justified while the pandemic persisted. The appellant's grievance was extension without recall, not imposition. The contract then lapsed by effluxion of time on 31.12.2021.
Redundancy procedure under section 40
The trial court misdirected itself in finding lawful redundancy; the contract lapsed by effluxion of time, not redundancy, but the payment made was substantially fair
The Court held that although the trial court misdirected itself in characterising the separation as lawful redundancy, the evidence showed the contract lapsed on 31.12.2021. The respondent paid Kshs.77,228.50 as advised by the labour officer, which the Court found substantially fair within section 40 for the final two-year term contract.
Remedies — service pay, leave, house allowance, arrears
All monetary claims failed; only the statutory certificate of service was due
Service pay was barred by NSSF membership; leave records showed a negative balance; the salary was consolidated (inclusive of housing) and contracts had been duly performed; salary arrears were inconsistent with the mutually agreed COVID-19 unpaid leave. Only the statutory certificate of service remained outstanding.
Legal principles established
#- On a first appeal the court re-evaluates evidence but will not disturb the trial court's decision unless it misdirected itself in a material respect
- A labour officer's advisory does not amount to a judicial decision to render a suit res judicata
Court orders
#- 1.The trial Court's final order dismissing the suit with no costs is varied to determination of the suit with no costs and the respondent to deliver the certificate of service
- 2.No costs of the appeal
- 3.The Deputy Registrar to forthwith return the case file to Machakos Sub-Registry as closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court (Honourable Barbara Ojoo)
- null
- Jurisdiction invoked
- First appeal under the Employment and Labour Relations Court Act (first appeal — re-evaluation of evidence)
Relief refused
#Service pay
Appellant was a member of NSSF
Untaken annual leave
Appellant's own evidence showed leave due was -23 days
House allowance
Salary was consolidated and contracts had been duly performed
Salary arrears for 16 months
Unpaid leave was mutually agreed due to COVID-19
Setting aside the trial court's judgment
Trial court did not err on constructive dismissal
Costs
No costs of the appeal; the trial Court's dismissal of the suit with no order on costs would otherwise be upheld.
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.
Accordingly, the Court has upheld the trial Court’s finding that there was no unfair constructive dismissal on account of unpaid leave.
The trial Court’s final order dismissing the suit with no costs is varied to determination of the suit with no costs and, the respondent to deliver the certificate of service.
The decision of the trial Court ought not be disturbed unless it shown that the trial Court misdirected itself in material respect and thereby arrived at conclusions that were not just or correct.
the labour oficer did not exercise judicial power and was no such competent Court so that the advisory by the labour oficer could not amount to a decision to render the suit res judicata
Issues in the judgment
#Judgment refers inconsistently to the memo year — pleaded as 20.08.2020 in the response but submissions describe a memo of 20.08.2022
Internal contradiction in reasoning on salary arrears
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua v Mastermind Tobacco Kenya Limited (Appeal E006 of 2023) [2025] KEELRC 1700 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 19.08.2023 (from ELRC Cause, Memorandum of Claim dated 06.08.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1700/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.