Vincent Murangiri v Browns East Africa Plantations PLC

4. Prior to joining the Respondent, the Petitioner avers that he had been head-hunted from Sintel Security Print Solutions Limited. On 18th July 2024, he was summoned by his line manager, Mr Nelson Kiforo, to the Browns ITC offices, where, together with the HR Business Partner, Ms Beatrice Bett, he was compelled to record a statement regarding the theft suspects arrested on 5th July 2024. On 19th July 2024, Mr Kiforo issued him with a two-week suspension letter without any reason, insisting that he sign it and repeatedly urging him to resign. 5. On 24th July 2024, the Petitioner avers that he was served with a back-dated show cause letter alleging assault of suspects, coupled with further pressure to resign, and even received a WhatsApp job advert from Mr. Kiforo at 0905hrs the same day. The Petitioner nonetheless responded to the show cause on 25th July 2024, though his response was ignored. 6. On 29th July 2024 at 0253hrs, the Petitioner avers that an attempted burglary occurred at his company-assigned residence, with delayed and suspicious security response, prompting him to report the matter personally at Kericho Police Station under OB No. 35/29/07/2024. KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 2 OF

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7. Faced with continued intimidation, harassment, and mental anguish, the Petitioner avers that he tendered his resignation on 29th July 2024, only for the Respondent to advertise his position the same day and later acknowledge his resignation on 1st August 2024. His final dues and certificate of service were deliberately withheld. 8. The Petitioner contends that these events amounted to constructive dismissal, an unfair and unlawful termination contrary to natural justice, human dignity, including Articles 28, 29, 41 (1), 41(2)(a) and (b), 47 and Article 50 (1) and (2) of the Constitution of Kenya as read together with sections 35(1)(c), 35(4)(b), 36, 41, 43, 44, 45, 46, 49, 50 and 51 of the Employment Act and as read together with Sections 4 and 6 of the Fair Administrative Actions Act. 9. The Petitioners pray for: a. A declaration that the Petitioner’s fundamental rights and freedoms as enshrined under Articles 26, 31,41, 43, 47 and 50 of the Constitution of Kenya, 2010 have been contravened and infringed upon by the Respondent. b. A declaration that the termination of the Petitioner was unfair, unlawful and unprocedural. c. An order compelling the Respondent to pay the Petitioner the following: KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 3 OF

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i. Compensation for unfair termination (Kshs.360,145.67 X 12 months) Kshs.4,321,748.04/= ii. Payment in lieu of Notice (2 months) Kshs.720, 291.34/= iii. Unpaid leave days (7.5 days) (7.5days/30days X Kshs.360,145.67) Kshs.90,036.42/= iv. Unpaid portion of Transition Bonus Kshs.164, 359.00/= - d. General damages for violation of constitutional rights. e. An order compelling the Respondent to issue the Petitioner with a certificate of service. f. Cost of this Petition. g. Any other befitting relief under Article 23(3) of the Constitution of Kenya. Respondent’s response to the petition and replying affidavit 10.In opposition to the Petition, the Respondent filed a response dated 13th March 2025 and a replying affidavit sworn by Nelson Kiforo, its Security Manager overseeing Kericho, Bomet, and Limuru estates. 11. The Respondent categorically denies the key allegations in the Petition, maintaining that the KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 4 OF

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Petitioner was never terminated but voluntarily resigned on 29th July 2024 during a lawful disciplinary process, thereby negating any claim of constructive dismissal. 12.The Respondent asserts that allegations of coercion, intimidation, headhunting, and constitutional violations are unfounded, misleading, and unsupported by evidence, noting that its security operations are managed independently by a third-party company and that the Petitioner failed to follow clearance procedures after resigning. 13. The Respondent emphasizes that commencing disciplinary proceedings was within its constitutional and statutory rights under the Employment Act, 2007, and that the resignation was an autonomous decision. 14. In the replying affidavit, the Respondent gives a detailed and clear chronology as follows: the Petitioner’s employment commenced on 6th May 2024 after an offer dated 16th April 2024; a statement was recorded on 18th July 2024; suspension issued on 19th July 2024; show cause letter dated 23rd July 2024 requiring response by 26th July 2024; and the Petitioner’s response KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 5 OF

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submitted on 25th July 2024. While deliberations were ongoing, the Petitioner abruptly resigned on 29th July 2024, effective immediately, and the resignation was accepted on 1st August 2024. 15.The Respondent underscores that under the contract, the Petitioner owed two months’ notice or salary in lieu, with dues computed showing a debt of Kshs.686,292. Firmly denying any coercion or foul play, the Respondent argues that the resignation was voluntary, not a dismissal, and therefore the Petitioner is not entitled to compensation, damages, or constitutional remedies. 16.The Respondent urges dismissal of the Petition with costs, portraying the claims as misconceived, exaggerated, and legally untenable. Petitioners’ further affidavit 17. The Petitioner filed a further affidavit in response to the Respondents’ replying affidavit dated 18th February 2026. 18.The Petitioner avers that at paragraph 41 of the Petition and paragraph 23 of the supporting affidavit, it was erroneously indicated that the OB Number issued to me upon reporting the attempted KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 6 OF

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burglary was OB No. 35/29/07/2024, whereas the correct reference is OB No. 33/29/07/2024. 19. The Petitioner confirms that the number given was indeed 33/29/07/2024, and he finds it necessary to clarify this point for accuracy. Further, having read and understood the Respondent’s Response to the Petition dated 13th March 2025, he joins issue with the Respondent save only where the response contains admissions. 20. The Petitioner avers that the said response is fatally incompetent, ought to be struck out, and that the Petition should be allowed as prayed. 21. The Petition was canvassed by way of written submissions. Petitioners’ submissions 22. The Petitioner submitted that the Respondent’s pleadings are fatally defective on two independent grounds. First, Ms. Cindy F. Dana, the Respondent’s in-house counsel, lacks capacity to appear because she has not filed corporate authority under seal as required by Order 9 Rule 2(c) of the Civil Procedure Rules, and being directly involved in the matter, she is a potential witness barred from appearing under Paragraph 8 of the KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 7 OF

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Advocates (Practice) Rules. Authorities such as Kaiga v Co-operative Bank of Kenya Ltd [2024] KEELRC 2218 (KLR), Singh v Awa [2025] KEELRC 26 (KLR), and Stephen Muriuki Chiuri v Alice Mwaniki & 2 Others [2008] KEHC 2632 (KLR) affirm the necessity of corporate authorization under seal. Second, the Replying Affidavit sworn by Mr. Nelson Kiforo is defective as it annexes no board resolution or authority under seal, contrary to Order 9 Rule 1 of the Civil Procedure Rules. The Petitioner relied on the case of Kenya Commercial Bank Limited v Stage Coach Management Ltd [2014] KEHC 7474 (KLR) holding that in the absence of such authority, “the company is not before the Court at all.” Taken cumulatively, these defects represent a wholesale failure to properly place the Respondent on record, and the Petitioner urges that the pleadings be struck out and the Petition allowed as uncontested. 23. The Petitioner submitted that even if the court were to decline striking out the Respondent’s pleadings, the Petition remains merited as the resignation of 29th July 2024 was coerced and amounted to constructive dismissal. The Petitioner KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 8 OF

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relied on the cases of Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), Western Excavating (ECC) Ltd v Sharp [1978] ICR 222, Mwaniki v Tihan Ltd [2025] KEELRC 1208(KLR), Lear Shighadi Sinoya v Avtech Systems Limited [2017] KEELRC 347 (KLR), Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited [2014] KEELRC 723 (KLR), and Kenya Union of Sugarcane Plantation & Allied Workers v Othira [2024] KEELRC 843(KLR), to show that sustained pressure to resign, suspension without reasons, a back-dated show cause letter, unacknowledged response, coercion through a WhatsApp job advert, an attempted burglary at his residence vide OB No. 33/29/07/2024, and immediate re-advertisement of his position constituted intolerable conditions. He further invoked constitutional violations, relying on Anarita Karimi Njeru v Republic [1979] KEHC 30(KLR), Egesa v African Economic Research Consortium [2025] KEELRC 3253(KLR), Opuko v Nakuru Lucky Investments Ltd [2026] KEELRC 650(KLR), MWK & another v Attorney General & 4 Others; Independent Medical KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 9 OF

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Legal Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) [2017] KEHC 1496 (KLR), COO v GAIN [2025] KEELRC 2046 (KLR), and Mongare v Judicial Service Commission [2022] KEELRC 13570 (KLR), to argue breaches of Articles 26, 28, 29, 41, 43, 47 and 50 of the Constitution in support of that proposition. 24. The Petitioner contended that the Respondent’s conduct amounted not only to unfair termination but also to constitutional torts, and therefore the Petition should be allowed with all prayers sought. Respondent’s submissions 25. The Respondent submitted that the Petitioner’s objections to its pleadings are unfounded. The Respondent argued that Ms. Cindy F. Dana, though an in-house counsel, properly entered appearance as a duly admitted advocate with a valid practicing certificate, and no law requires a company to furnish board authority under seal to defend suits. Reliance is placed on Saraf Limited v Augusto Arduin [2016] KECA 177 (KLR), where the Court of Appeal held that requiring board resolutions would make it nearly impossible for companies to defend suits within strict timelines. The Respondent KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 10 OF

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further submitted that the Petitioner has not provided evidence under section 107 of the Evidence Act to prove that Ms. Dana is a potential witness, and Rule 8 of the Advocates (Practice) Rules does not apply absent such proof. Regarding the Replying Affidavit sworn by Nelson Kiforo, the Respondent maintains that no board resolution was necessary, again citing the case of Saraf Limited v Augusto Arduin (supra), and emphasizes that Article 51 of the Constitution guarantees the right to be heard, making it appropriate for Kiforo, who is mentioned in the Petition, to represent the Respondent. Even if authority under seal were required, the Respondent argues this would be a mere procedural technicality cured by Article 159(2)(d) of the Constitution, which directs courts to administer justice without undue regard to technicalities. Accordingly, the Respondent urges the Court to consider its pleadings and determine the matter on substantive grounds. 26. The Respondent submitted that the Petitioner has failed to prove constructive dismissal under section 107 of the Evidence Act, as no evidence was tendered to support claims of pressure to resign, suspension without reasons, or a back-dated KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 11 OF

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show cause letter. It maintains that the suspension was lawful, investigations were ongoing, and the show cause letter was properly issued with adequate time to respond. The Respondent further contended that failure to acknowledge the Petitioner’s response did not amount to coercion, and the WhatsApp job advert and burglary allegations were speculative, unsupported by independent investigation reports, and involved third-party security beyond its control. 27. The Respondent relied on Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga (Supra) and Catherine Kinyany v MCL Saatchi & Saatchi [2013] KEELRC 583 (KLR). It stresses that constructive dismissal requires proof of intolerable conditions directly caused by the employer, which was lacking because the Petitioner resigned during a lawful disciplinary process. On constitutional claims, it invokes Wajir Wasco Ltd v Mohamed & 2 Others [2024] KECA 937 (KLR) to emphasise the doctrine of constitutional avoidance, arguing that this is a standard employment dispute governed by statute. 28.The Respondent concluded that the Petitioner voluntarily resigned, was not constructively KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 12 OF

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dismissed, and is not entitled to remedies such as compensation, notice pay, or damages, urging dismissal of the Petition with costs under Section 12(4) of the Employment and Labour Relations Court Act. Analysis and determination 29.The court has considered the Petition, Supporting affidavit, Replying affidavits, Further replying affidavit and rival submissions by both Counsels; the issue for determination is whether the Petitioner was constructively dismissed or he resigned voluntarily. 30. In Saraf Limited v Augusto Arduin(supra) the Court of Appeal stated as follows: “The law on the position where one is dealing with a limited liability company shows that one cannot probe into the internal affairs of a company. A party dealing with a limited liability company which has instituted a suit against him/her seeking relief or making a claim cannot go behind what ex facie appears to be legitimate and fail to answer the allegation on the claim and instead question legality of the action against him, that is to say, whether there was a resolution of the Board of Directors or a resolution of the general meeting. He KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 13 OF

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must proceed on the footing that ex facie the action was commenced with the authority of the Board or the general meeting. The decision in Royal British Bank v. Turquand [1856] 6 E & B 327 is in support of this proposition. In that case, a limited liability company was sued on a bond for £2,000 which two directors of the company had signed on behalf of the company. The deed of settlement registered under the Joint Stock Company Act 1847 allowed directors to borrow on bond to the extent authorized by general meeting of the company. In an action on the bond, the company pleaded that there had been no resolution authorizing the making of the bond. The English Court of Exchequer Chamber held that: “...a person, on reading the deed of settlement, would find, ... not a prohibition against borrowing, but a permission to borrow on certain conditions, and, learning that the authority might be made complete by a resolution, he would have a right to infer the fact of a resolution authorizing that which on the face of the document appeared to be legitimately done; and therefore, the company was liable whether or not a resolution had been passed.” KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 14 OF

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31. In this instant case, the Petition was filed on 28th February 2025, and the Respondent entered appearance on 13th March 2025 through its in-house counsel, Ms. Cindy F. Dana. Sections 107, 108, and 109 of the Evidence Act place the burden of proof on the party alleging. Upon reviewing the pleadings, the court finds no evidence that Ms. Dana signed any documentation rendering her a potential witness in the matter, and therefore declines the argument raised by the Respondent. 32.In Coca Cola East & Central Africa Limited V Maria Kagai Ligaga(Supra), the Court of Appeal stated as follows: “The key element in the definition of constructive dismissal is that the employee must have been entitled to or have the right to leave without notice because of the employer’s conduct. Entitled to leave has two interpretations which give rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behaviour towards him was so unreasonable that he could not be expected to stay- this is the unreasonable test. The second interpretation is that the employer’s KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 15 OF

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conduct is so grave that it constitutes a repudiatory breach of the contract of employment- this is the contractual test.” 33. The Court of Appeal further gave a breakdown of guiding principles when dealing with constructive dismissal as follows: a.What are the fundamental or essential terms of the contract of employment? b.Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer? c. The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. d.An objective test is to be applied in evaluating the employer’s conduct. e.There must be a causal link between the employer’s conduct and the reason for the employee terminating the contract; that is causation must be proved. f. An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination. KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 16 OF

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g.The employee must not have accepted, waived, acquiesced or conduct himself to be estopped from asserting repudiatory breach; the employee must-within a reasonable time, terminate the employment relationship pursuant to the breach. h.The burden to prove repudiatory breach or constructive dismissal is on the employee. i. Facts giving rise to repudiatory breach or constructive dismissal are varied. 34. In Leena Apparels (EPZ) Limited V Nyevu Juma Ndokolani [2018] KECA 308 (KLR), the Court of Appeal held as follows: “……………….. Whenever an employee alleges constructive dismissal, a court must evaluate if the conduct of the employer was such as to constitute a repudiatory breach of the contract of employment. The employer’s conduct does not have to be intentional or in bad faith before it can be repudiatory……………….” “In order for a claim for constructive dismissal to succeed where the Court applies the contractual test, it must be concluded that the employer’s conduct or unilateral change, constitute a breach of KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 17 OF

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the contract of employment, and second if it constitutes such a breach, it must be found to substantially alter an essential term of the contract.” 35.In Godfrey Allan Tolo v Tobias O. Otieno & Another [2022] KEELRC 359 (KLR) the court held as follows: “For constructive dismissal to be inferred, the employee must have resigned within reasonable time from his employment, with or without notice, as a result of the employer’s hostile treatment or hostile working conditions at his workplace. The employer must also not have expressed the desire to terminate the employee.” 36. Section 47(5) of the Employment Act provides as follows: “For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.” 37. In this case, the Petitioner was employed by the Respondent as Security Operations Manager KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 18 OF

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overseeing Kericho, Bomet, and Limuru estates, and alleges he was coerced to resign after accusations of assaulting suspects caught siphoning fuel. The Respondent, however, denies these claims, maintaining that the Petitioner voluntarily resigned on 29th July 2024 during a lawful disciplinary process, thereby negating constructive dismissal. It dismisses allegations of coercion, intimidation, headhunting, and constitutional violations as unfounded, stressing that security operations were managed independently by a third-party and that the Petitioner failed to follow clearance procedures. The Respondent outlines the chronology of events: employment commenced on 6th May 2024, statement recorded on 18th July 2024, suspension issued on 19th July 2024, show-cause letter dated 23rd July 2024, response submitted on 25th July 2024, resignation tendered on 29th July 2024, and formally accepted on 1st August 2024. It emphasizes that under the contract, the Petitioner owed two months’ notice or salary in lieu, with dues computed showing a debt of Kshs.686,292/=. Firmly denying any foul play, the Respondent KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 19 OF

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argues the Petition is misconceived, exaggerated, and legally untenable, urging dismissal with costs. 38.The court is being called to determine if the Petitioner was constructively dismissed. The evidence on record is that the Petitioner was asked to give a feedback on allegations of inhuman treatment of employees who were allegedly found stealing from the company. He was given a Notice to show-cause on which he responded. The notice to show-cause was dated 23rd July 2024 and response was on 25th July 2025. The Petitioner then tendered his resignation on 29th July 2025. 39. The Petitioner did not give the Respondent an opportunity to convene a disciplinary hearing as he was quick go resign. He says he was pressurised to resign but there is no evidence whatsoever that he was forced to resign. In his resignation letter, he did not indicate he was forced to resign or was mistreated so as to justify constructive dismissal. He simply wrote; “Please accept this letter as a Notice of my resignation from Lipton Teas and Infusion effective July 29 2024.” KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 20 OF

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He did not give the Notice as required and provided in his contract of employment. He should have given one (1) month notice since he was still within the probation period. 40. In that regard, the court finds the Petitioner shows no evidence of constructive dismissal as he did not even raise any issues of mistreatment or toxic environment at his resignation. 41. The courts have held that an employee who resigns to avoid disciplinary action cannot then claim unlawful termination. In the case of Chege -VsTimsales Ltd (Civil Appeal No. 29 of (2025)) KECA 1660 KLR where Court of Appeal held; “An employee cannot lawfully evade pending disciplinary proceedings by purporting to resign.” 42.The court has considered the pleadings, submissions, and case laws and finds the Petitioner did not prove the tenets of constructive dismissal as set out in various case laws including the case of Coca Cola East & Central Africa Limited -VSMaria Kagai Ligaga(Supra). The Petitioner has not proved a case for unlawful termination and/or KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 21 OF

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violation of his fundamental rights. The Petition is therefore dismissed. 43. Having said so, the Petitioner is entitled to payment of (a) Unpaid leave there being no evidence that he took leave Kshs.90,036/42 (b)Transition bonus Kshs.164,359/= - (c) Each party will meet their respective costs of the Petition and total award is Kshs.254,395.42 with interest at 14% per annum at court rates from date of judgment till full payment. (d)Respondent to issue Certificate of Service 30 days from today’s date. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 25th Day of September 2026. ANNA NGIBUINI MWAURE JUDGE ORDER KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 22 OF

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In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which proportionate is and to facilitate affordable just, expeditious, resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE KRC ELRC PETITION NO E004 OF 2025 23 JUDGMENT PAGE 23 OF

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