Kenya Petroleum Oil Workers Union v Owi (Appeal E069 of 2025) [2025] KEELRC 2563 (KLR)
The bottom line
#A Kenyan court confirmed that a forced transfer without proper notice or pay can amount to constructive dismissal, but cut the employee's compensation from 12 to 3 months' salary.
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 trial court erred in fact and law in finding the resignation amounted to constructive dismissal
- 2.Whether the trial court erred in the reliefs awarded
- 3.Who should bear the costs
Key legal issues
#Whether the respondent's resignation amounted to constructive dismissal
The finding of constructive dismissal by the trial court was upheld; the transfer on very short notice without facilitation, failure to respond to the respondent's requests and withholding of salary constituted repudiatory conduct
The court applied the contractual test from Coca Cola v Ligaga: the employer's conduct must objectively constitute a repudiatory breach and the employee must resign in response. The transfer letter required reporting within 2 working days without facilitation; the respondent's protest letters went unanswered; salary was withheld; the show cause notice was not received. The appellant failed to produce its transfer policy, and the respondent's continued reporting to the Nairobi office was not controverted.
Whether the trial court erred in awarding maximum 12 months' compensation
Appeal allowed on quantum; compensation reduced from 12 months to 3 months' salary because the trial court considered only the length of service and the respondent's strongly-worded letter contributed to the breakdown
Section 49(4) of the Employment Act requires consideration of a raft of factors including employee conduct contributing to termination. The trial court considered only the 12-year length of service. Since the transfer was a legitimate employer prerogative tainted only procedurally, and the respondent's own conduct was noted, maximum compensation was excessive; 3 months was adequate.
Whether notice pay, August/September salaries and leave allowance were properly awarded
All upheld: notice pay follows from upheld unfair termination under sections 35 and 36; the salary for August and September upheld since the claimant continued reporting to work in protest; leave allowance upheld as the leave application of 4 August was not approved
Having upheld constructive dismissal as unfair termination, notice pay is payable under sections 35 and 36 of the Employment Act. The trial court's finding that the claimant continued to work in Nairobi protesting the transfer was not controverted by the employer's records, so the withheld salaries were properly awarded. The claimant's leave request of 3 August 2021 was never approved.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong, because of misdirection, acting on wrong matters, or failure to consider relevant matters
- Transfer is a prerogative of the employer, but the court may interfere where there is lack of sufficient notice
- Constructive dismissal is a common law principle recognised by the courts; the contractual test applies - the employer's conduct must amount to a repudiatory breach going to the root of the contract, evaluated objectively, with causation shown by the employee
- Where an employee alleges constructive dismissal based on transfer, failure to accord reasonable notice and facilitation of the transfer amounts to procedural unfairness
- An employer alleging desertion must demonstrate efforts made towards getting the employee to resume duty, including notice that termination on ground of desertion is being considered
- An appeal does not lie against an order made in the exercise of judicial discretion unless it is shown the discretion was not exercised judicially
Court orders
#- 1.Appeal allowed with respect to compensation, reduced from maximum 12 months to 3 months' salary
- 2.Judgment and Decree of Hon. A.N. Ogonda (PM) dated 12th February 2025 set aside and substituted
- 3.Declaration that the Claimant's resignation was involuntary and amounted to constructive dismissal, being unfair termination
- 4.Order compelling the Respondent Union to pay unpaid salaries for August and September 2021 of Kshs. 93,812
- 5.Salary disparity for April 2021 of Kshs. 1,366
- 6.One month leave allowance and traveling allowance of Kshs. 52,906
- 7.One month salary in lieu of notice of Kshs. 46,906
- 8.Three months' compensation for unfair termination of Kshs. 140,718
- 9.Total sum of Kshs. 335,708 payable with interest at court rates from the date of judgment until payment in full
- 10.Respondent Union to pay the claimant the costs of the suit
- 11.Certificate of Service to be issued under section 51 of the Employment Act
- 12.Each party to bear own costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC)
- MCELRC E1961/2021
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's court in employment and labour relations matters
Relief refused
#Maximum 12 months' compensation of Kshs. 562,872 for unfair termination
Trial court considered only length of service; the transfer was a prerogative of the employer tainted only by procedural unfairness, so 12 months was too high; reduced to 3 months
Costs
The respondent shall pay the claimant the costs of the suit; in the appeal, each party to bear own costs.
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.
In the upshot the appeal is allowed with respect to the compensation which is reduced from the maximum compensation to 3 months’ salary . The Judgment and Decree of the Hon. A.N. Ogonda (PM) delivered on 12th February, 2025 in MCELRC E1961/2021is set aside and substituted
A declaration that the Claimant's resignation was involuntary and amounted to constructive dismissal. It was unfair termination.
The Total sum of Kshs. 335708 (above) is payable with Interest at court rates from the date of judgment until payment in full. The respondent shall pay the claimant the costs of the suit.
Certificate of Service to be issued under section 51 of the Employment Act.
I order each party to bear own costs in the appeal.
The finding of constructive dismissal is upheld.
The court finds that the 12 months maximum compensation was too high. The court finds that compensation equivalent of 3 months salary was adequate compensation in the circumstances.
Issues in the judgment
#The judgment states the respondent served for 10 years in one passage and 12 years in another, without reconciliation
Paragraph 35 states the Court of Appeal decision in Coca Cola was 'upheld in the case of Kenneth Kimani Mburu', which is chronologically and hierarchically implausible
The judgment cites the 'Appeal' context yet the appellant's submissions on reliefs describe 'the respondent submitted that the Trial Court awarded...', a labelling confusion in the submissions section
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v Owi (Appeal E069 of 2025) [2025] KEELRC 2563 (KLR)", Case Analysis (2025). Appeal against judgment in MCELRC E1961/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2563/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.