Modern Coast Express Limited v Abdi Kosar Mohamed

Elrc Appeal No. E196 Of 2025 night shifts; that he took the advice to the Appellant and asked to be assigned day duties; that his request was ignored; and that, his health failing, he left the employment on 1st April 2020. He sued, contending that he had been constructively dismissed. The Appellant said that he deserted his post, and that it knew nothing of any medical condition. 2. The learned trial magistrate found for the Respondent and awarded him Kshs. 364,736.80. The Appellant contends that the judgment is wrong in its entirety, and that its counterclaim, which the trial court did not determine, ought to have been allowed. B. BACKGROUND (a) The pleadings 3. By a Memorandum of Claim dated 22nd October 2020, the Respondent pleaded that he was employed in November 2011 at a monthly salary of Kshs. 9,000, which rose over time to a gross salary of Kshs. 16,584. He pleaded that in February 2020 he was assigned night duties; that on 25th 2

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Elrc Appeal No. E196 Of 2025 February 2020 he was treated at the Coast General Teaching and Referral Hospital and advised by Dr. Adnan M.A. not to continue working night shifts on account of the surgery; that on the same day he presented the doctor’s letter to the Appellant’s Human Resource Manager and orally asked to be given day duties; that he received no response and was forced to continue working at night; that his condition worsened; that in March 2020 he wrote to the Human Resource Manager asking to be allocated day duties, failing which he would be forced to resign with effect from 1st April 2020; that there was again no response; and that he left on 1st April 2020 because the working conditions had become unbearable. 4. He pleaded, at paragraph 10, that he “was constructively terminated from employment”, and, at paragraph 13, that his decision to resign “was wholly and solely caused by the failure of the Respondent’s Human Resource Manager to take into consideration his medical condition and allocate him day duties and as such his constructive dismissal was unfair, un procedural and unlawful”. He sought: 3

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Elrc Appeal No. E196 Of 2025 (a) one month’s salary in lieu of notice, Kshs. 16,584.95; (b) underpayment for the period 1st May to 31st December 2013, Kshs. 6,247.60; (c) pay for public holidays worked between November 2011 and 1st April 2020, Kshs. 51,030.40; (d) gratuity for the same period, Kshs. 91,854.72; (e) compensation for unfair termination, twelve months’ salary, Kshs. 199,019.40; and (f) a certificate of service, costs and interest. 5. By its Memorandum of Response and Counterclaim dated 23rd December 2020, the Appellant admitted that it engaged the Respondent as a security guard on 7th December 2011. It denied that he was a night guard, pleading that he “was a day guard”. It pleaded that the Respondent “deserted work without notice on his own volition”, that he never informed it of any medical condition, and that it learnt of the condition only through the suit. It also pleaded, in the alternative, that the Respondent 4

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Elrc Appeal No. E196 Of 2025 resigned without notice. It denied that he worked on public holidays or was underpaid, and denied his entitlement to gratuity. By its counterclaim it sought Kshs. 150,000 for a passenger’s consignment said to have been stolen from a store the Respondent was to guard; Kshs. 50,000 in overtime paid to cover his shifts; one month’s salary in lieu of notice, Kshs. 16,584; and twelve months’ salary, Kshs. 199,008, as “compensation for unlawful termination of contract”: in all, Kshs. 365,592. (b) The evidence and the mode of trial 6. The Respondent’s witness statement of 22nd October 2020 repeated his pleaded case. The Appellant filed, successively, the witness statements of Fatuma Ruwange (23rd December 2020), Emmy Chepkoech (26th October 2022) and Gloriah Destiny Mlanya (26th March 2024). Each of them stated that the “redeployment of the Claimant to night duty was done in compliance with the Employment Act”, that the Appellant was unaware of any medical condition, and that the 5

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Elrc Appeal No. E196 Of 2025 Respondent “resigned on his own volition and without notice”. 7. By consent, the parties elected to have the suit determined on the documents under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024. The witness statements were adopted and the documents produced. No witness was cross-examined. (c) The judgment of the trial court 8. The learned magistrate framed four issues: whether the Respondent absconded duty; whether his employment was unfairly terminated; whether he was entitled to the reliefs sought; and costs. On the first, she held that nothing on the record supported the allegation of desertion, that the Appellant’s own witness said the Respondent had resigned, and that there was no show cause letter, message or other evidence of any effort to reach him, which the law requires of an employer who pleads desertion. On the second, she held that the Appellant had been presented with medical evidence that the Respondent’s health was at risk if he 6

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Elrc Appeal No. E196 Of 2025 continued working at night after the surgery, and that its imperviousness to that concern left him with no option but to resign. He had, she held, been constructively dismissed, the Appellant having failed to observe section 5 of the Employment Act and to accommodate an employee in his condition. She allowed every head of the claim, in the sum of Kshs. 364,736.80, with costs and interest. The judgment did not address the counterclaim. C. THE APPEAL 9. By a Memorandum of Appeal dated 19th September 2025, the Appellant set out nineteen grounds. They may be fairly condensed. The Appellant contends that the learned magistrate erred in law and in fact: (a) in failing to determine its counterclaim, and so denying it a hearing on it (grounds 2 and 3); (b) in finding constructive dismissal, a cause of action it says was neither pleaded nor proved, and in doing so without first establishing that there was a termination by the employer, contrary to sections 43 and 47(5) of 7

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Elrc Appeal No. E196 Of 2025 the Employment Act, when the Respondent had pleaded that he resigned (grounds 1, 4, 10, 11, 12, 18 and 19); (c) in relying on medical evidence that it says had been expunged from the record (grounds 5, 6 and 8); (d) in placing the burden of proof on the Appellant (grounds 7 and 9); and (e) in awarding pay for public holidays, which it says was unproved and time-barred, gratuity, notice pay and the maximum compensation (grounds 13 to 17). 10. It prays that the judgment be set aside, that the suit be dismissed, and that judgment be entered on its counterclaim, with costs. The appeal was canvassed by way of written submissions. D. THE PARTIES’ SUBMISSIONS (a) The Appellant’s submissions 11. In its written submissions dated 25th February 2026, filed by Prof. Albert Mumma & Company Advocates, the Appellant 8

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Elrc Appeal No. E196 Of 2025 identified two issues: whether the trial court erred in finding that the Respondent was constructively terminated, and whether he was entitled to the reliefs awarded. 12. It submitted that the matter proceeded under Rule 59, but that before directions were taken, the medical records dated 23rd December 2020 and 25th February 2020 were expunged from the record, yet the trial court relied on them. It recounted that the Respondent’s tenure was marred by misconduct, most notably a fight at the workplace on 20th January 2017 for which he apologised and was suspended for seven days, and that thereafter he lost interest in his work and offered unsubstantiated excuses for absence. On 1st April 2020, it submitted, he abruptly deserted his duties. He never raised any medical concern related to his working hours, and it learnt of the alleged condition only on being served with the claim. His departure left a store unguarded, from which a passenger’s goods valued at Kshs. 150,000 were lost, and it was forced to pay about Kshs. 50,000 in overtime to cover his shifts. 9

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Elrc Appeal No. E196 Of 2025 13. On the first issue, the Appellant relied on section 45(2) and section 47(5) of the Employment Act, the latter placing on the employee the burden of proving that an unfair termination occurred. It submitted that the Respondent absented himself without notice or explanation, “thereby effectively resigning”; that he produced no evidence that he communicated any health concern to it; and that his departure was voluntary. It relied on Coca-Cola East & Central Africa Ltd v Maria Kagai Ligaga [2015] KECA 394 (KLR), and the principles set out in that decision, and on Lear Shighadi Sinoya v Avtech Systems Limited [2017] eKLR, for the proposition that the employee must plead and prove the intolerable conditions that forced the resignation. The trial court, it submitted, erred in finding constructive dismissal on the strength of expunged medical records; failed to appreciate that it had fostered a supportive environment and indulged the Respondent despite his misconduct; and erred in holding that it was the employer’s business to look for an absent employee, since it learnt that he had left only 10

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Elrc Appeal No. E196 Of 2025 through the suit. To let the judgment stand would be to reward lawlessness at the workplace. 14. On the reliefs, it submitted that notice pay was not due because the Respondent deserted, and that an employee who resigns without notice must himself pay in lieu under section 36, relying on Richard Abiero v Nyali Golf & Country Club Ltd [2015]. On underpayment and public holidays, it submitted that the Respondent adduced no evidence that he worked on those days or was paid below the minimum wage, and that the claims were time-barred as continuing injuries, relying on George Hiram Ndirangu v Equity Bank Limited [2015] eKLR and Samuel Otiende Lukoko v Shiners Girls High School [2015] eKLR. On gratuity, it submitted that no contract provided for it, relying on Daniel Charo Karani v Daniela Malanchini [2022] and Bamburi Cement Ltd v Kilonzi [2016], for the proposition that gratuity is payable only where the contract provides for it. On compensation, it submitted that twelve months was high-handed for an employee who absconded, and relied on Greatlakes Trans (K) Ltd v Mohammed [2025] KEELRC 1166 (KLR) for the 11

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Elrc Appeal No. E196 Of 2025 proposition that no remedy under section 49 lies on a voluntary resignation. It also submitted that a certificate of service had been issued, and, on costs, relied on Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR). It urged that the judgment be set aside and judgment entered on its counterclaim. (b) The Respondent’s submissions 15. In his written submissions filed in April 2026 by C.O. Tolo & Company Advocates, the Respondent began with the duty of a first appellate court to re-evaluate the evidence and draw its own conclusions, relying on Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. 16. He pointed to the Appellant’s shifting account. In paragraph 11 of its response, it pleaded that he deserted. In paragraph 8 of the statement of its witness, Emmy Chepkoech, it said that he resigned. His own account was consistent: he fell ill after being assigned night duties; he was advised by Dr. Adnan M.A. on 25th February 2020 not to work at night; he 12

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Elrc Appeal No. E196 Of 2025 informed the Human Resource Manager and asked for day duties but received no response; he wrote in March 2020 asking again, failing which he would stop working on 1st April 2020; that too went unanswered; and he left on 1st April 2020 because the conditions had become unbearable. 17. Relying on the definition of constructive dismissal in CocaCola East & Central Africa Ltd v Maria Kagai Ligaga (supra), he submitted that the learned magistrate was right, because his condition deteriorated on night duty; he informed the Appellant of the condition and of the doctor’s recommendation; the Appellant ignored his request; and that disregard led to his resignation. The Appellant, he added, did not even subject him to a second medical examination. Relying on Kenya Plantation and Agricultural Workers Union v Rea Vipingo Plantations Limited & another [2015] eKLR, he submitted that sick or injured employees do not lose their right to equality of opportunity under section 5 of the Employment Act and Article 27 of the Constitution, and that the duty to reasonably accommodate them rests on that 13

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Elrc Appeal No. E196 Of 2025 right. He was ready and willing to work, but the environment left him no option but to resign for the sake of his health. 18. On the reliefs, he submitted that notice pay was due under section 35 of the Act. He submitted that underpayment was established, since the Appellant admitted paying him Kshs. 10,000, whereas the Regulation of Wages (General) (Amendment) Order, 2018 that he produced prescribed Kshs. 15,141.95 for a night watchman. On public holidays, he gave uncontroverted evidence, particularised in his claim, that he worked on public holidays without pay, and by regulation 9(2) of the Regulation of Wages (Protective Security Services) Order, 1998 he was entitled to double the normal rate. Gratuity was payable under paragraph 17 of the same Order after five years’ service, and he served eight complete years. On compensation, he relied on Kenfreight (E.A) Limited v Benson K. Nguti [2019] eKLR, where the Supreme Court held that once a termination is found unlawful, the remedy lies under section 49 of the Act, to be applied judiciously with guidance from section 49(4). He urged that the appeal be dismissed. 14

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Elrc Appeal No. E196 Of 2025 E. ANALYSIS AND DETERMINATION (a) The duty of this Court 19. This being a first appeal, the Court is under a duty to reconsider the evidence, evaluate it afresh and draw its own conclusions, bearing in mind that it did not see or hear the witnesses: Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123. In this matter no witness was seen or heard by the trial court either. The trial court and this Court therefore stand on the same footing as regards the evidence, which lies entirely in the pleadings, the witness statements and the documents. (b) A preliminary observation: the over-splitting of grounds of appeal 20. Before I turn to the issues, I must say something about the Memorandum of Appeal. Nineteen grounds have been set out. On a fair reading, they reduce to five complaints. The finding of constructive dismissal alone is attacked, in different words, in grounds 1, 4, 10, 11, 12, 18 and 19. Grounds 5 and 6 say the same thing twice. Ground 13 15

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Elrc Appeal No. E196 Of 2025 describes the award for public holidays as one for “unpaid leave of Kshs. 51,030.40”, although no leave was claimed or awarded. Ground 14 invokes section 89 of the Employment Act for limitation. Ground 4 contends, as a ground of error, that the Respondent pleaded that he resigned, which, as will become apparent, is not a point in the Appellant’s favour. 21. The practice of over-splitting grounds of appeal is improper and should be discouraged. A ground of appeal identifies, concisely and under a distinct head, a specific error of law or fact that the appellant attributes to the trial court. Order 42 rule 1(2) of the Civil Procedure Rules, whose spirit informs the practice of this Court in appeals from the subordinate courts, requires the memorandum to set out the grounds “concisely and under distinct heads… without any argument or narrative”. Grounds of appeal are not a statement of claim, a plaint, a defence or submissions. They are not the place to re-plead the case, to narrate the evidence or to argue. A memorandum that slices one complaint into many, or restates the same complaint in different words under several heads, does not strengthen an appeal. It obscures 16

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Elrc Appeal No. E196 Of 2025 the real points of contention, invites prolix submissions, and burdens both the respondent and the Court with the task of working out what, precisely, is in issue. I have nonetheless considered the substance of every ground, under the following issues: (i) the mode of trial under Rule 59; (ii) whether constructive dismissal was pleaded, and whether section 47(5) of the Employment Act governs it; (iii) whether the Appellant proved desertion; (iv) whether the Respondent was constructively dismissed; (v) the counterclaim; (vi) the reliefs; and (vii) costs. (c) Issue (i): The mode of trial under Rule 59 22. Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024 provides that the Court may, either by agreement of all the parties or on its own motion, 17

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Elrc Appeal No. E196 Of 2025 “proceed to determine a suit before it on the basis of pleadings, affidavits, documents filed and submissions made by the parties.” 23. The Rule serves a useful purpose. It is a tool for the expeditious and proportionate disposal of disputes, in keeping with the overriding objective. Its intended province is the suit in which the material facts are not seriously in dispute: where the employment, the salary, the manner of separation and the documents are largely common ground, and the contest is over the law, or over the entitlements that flow from facts both sides accept. In such a case, oral testimony and cross-examination would add little but time and cost, and the Court can safely decide on the papers. 24. The Rule should therefore be engaged with care, whether the parties consent to it or the Court acts of its own motion. Before a court invokes it, it must ask itself whether the facts in contest can be fairly resolved without testing the witnesses. Where they cannot, the Rule ought not to be engaged. Where it is engaged in an unsuitable case, the 18

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Elrc Appeal No. E196 Of 2025 dangers are real. Assertions in witness statements, including self-serving ones, go into the record untested by crossexamination. Contradictions go unexplained. The trial court is deprived of the most effective means of resolving a conflict of fact, the testing of the witnesses’ accounts under cross-examination, and is left to choose between two unexamined narratives on paper. The litigant against whom the choice goes may be left with a genuine sense that his story was never truly heard, and the appellate court inherits a record that cannot answer the very questions on which the dispute turns. Expedition purchased at that price is not justice. 25. The suit before the trial court was not a fit one for the Rule. It was riddled with contentious questions of fact: whether the Respondent was a night guard or, as the response pleaded, a day guard; whether he presented the doctor’s letter to the Human Resource Manager on 25th February 2020; whether he wrote to the Appellant in March 2020; whether he resigned or deserted; whether he worked on public holidays; and whether a passenger’s goods worth Kshs. 150,000 were 19

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Elrc Appeal No. E196 Of 2025 stolen from a store he was meant to guard, and the Appellant paid for them. Each of these turned on credibility, and each called for the witnesses to be tested. A trial on documents was, with respect, an unsuitable vehicle for them. 26. That said, the parties elected the procedure by consent, and neither has appealed against it. A party who consents to a trial on documents accepts its consequences: the evidence of the opposing party stands untested, and where it is not displaced by contrary evidence on record, it may well carry the day. The appeal must therefore be determined on the record as it stands. (d) Issue (ii): Was constructive dismissal pleaded, and does section 47(5) govern it? 27. The Appellant’s position is that constructive dismissal was neither pleaded nor proved, and that the Respondent’s case was one of unfair termination simpliciter. With respect, that position is not borne out by the pleadings. 20

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Elrc Appeal No. E196 Of 2025 28. It is a cardinal principle that parties are bound by their pleadings, and that a court may not determine a case that a party did not plead: Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR). The rules of pleading require a party to plead the material facts on which he relies. Material facts are those facts which are necessary to formulate a complete cause of action, such that if any one of them is omitted, the claim is bad: Bruce v Odhams Press Ltd [1936] 1 KB 697. They are distinct from the evidence by which they are to be proved, and from the conclusions of law to be drawn from them. A party who pleads the material facts of a cause of action has pleaded that cause of action, whatever label he gives it. 29. Here, the Respondent did more than attach a label. Constructive dismissal was pleaded explicitly, at paragraphs 10 and 13 of the Memorandum of Claim. More importantly, the material facts that constitute it were pleaded with clarity, at paragraphs 4 to 9 and 13: the term of the employment in issue, being the assignment to night duty in 21

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Elrc Appeal No. E196 Of 2025 the face of his medical condition; the medical advice of 25th February 2020; its communication to the Appellant on the same day, with a request for day duty; the Appellant’s failure to respond; the renewed request in writing in March 2020, with express notice that he would leave on 1st April 2020 if nothing was done; the continued silence; and his departure on 1st April 2020 because the conditions had become unbearable. The breach, the repudiation, the acceptance and its date were all there. The witness statement of 22nd October 2020, which was adopted as his evidence in chief, restated each of these facts, at paragraphs 2 to 10. The Appellant knew precisely the case it had to meet, and it met it with a plea of desertion. The complaint that the learned magistrate made out a case that was not pleaded has no foundation. 30. Having found that the claim was one of constructive dismissal, the Appellant’s insistence on section 47(5) of the Employment Act was, and is, misplaced. Constructive dismissal is a legal construct, a creature of the common law of contract adopted into our jurisprudence by the Court of 22

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Elrc Appeal No. E196 Of 2025 Appeal in Coca-Cola East & Central Africa Ltd v Maria Kagai Ligaga (supra). It is not codified in our statute. Section 47(5) addresses a complaint that the employer terminated the employment or dismissed the employee, and requires the employee first to show that an unfair termination or wrongful dismissal occurred. The Appellant’s argument is that the trial court ought first to have found that the Appellant terminated the employment, and could not, because the Respondent left. That argument misunderstands the nature of the claim. In constructive dismissal it is the employee who ends the relationship. The question is not whether the employer terminated, but whether the employer’s conduct amounted to a repudiatory breach of the contract, which the employee accepted by leaving. The burden of proving that lies on the employee, as the Court of Appeal made plain in Coca-Cola, and as sections 107 and 109 of the Evidence Act would in any event require. The burden is the Respondent’s, and it is to be measured by the principles in Coca-Cola, not by the language of section 47(5). 23

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Elrc Appeal No. E196 Of 2025 The learned magistrate did not err in approaching the matter as she did. (e) Issue (iii): Did the Appellant prove desertion? 31. The Appellant was required to answer the claim through its Memorandum of Response. It answered the pleaded case of constructive dismissal with a plea that the Respondent “deserted work without notice on his own volition”. Having made that assertion, it assumed the burden of proving it: sections 107 and 109 of the Evidence Act. That is not a shifting of the burden of proof, as grounds 7 and 9 suggest. It is the ordinary rule that he who asserts a fact must prove it. 32. Desertion is a serious allegation, and the law requires more of an employer who makes it than a bare assertion that the employee stopped coming to work. Desertion is a matter of intention. The employer must show, by clear proof, that the employee’s absence was deliberate and unjustified and that he had no intention of returning. As was held in Boniface Nkubi Karagania v Protective Custody Limited [2019] 24

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Elrc Appeal No. E196 Of 2025 KEELRC 152 (KLR), abandonment “cannot merely be presumed from certain equivocal acts, it must be demonstrated”, and the burden of proving the unjustified refusal to go to work rests on the employer. The employer must also show what it did about the absence. In James Ashiembi Namayi v Menengai Oil Refineries Ltd [2016] KEELRC 1802 (KLR), the Court restated that the employer “must also demonstrate that it made attempts to reach out to the employee to establish his whereabouts, making reasonable inquiries as to the absence (post, email, phone calls, colleagues, neighbours or family members), issuance of ultimatums to the employee to resume duty and the like.” To the same effect is Godfrey Anjere v Unique Suppliers Limited [2015] KEELRC 1413 (KLR). An employer who genuinely believes that its employee has deserted will ordinarily act on that belief: it will look for him, call upon him to return or explain himself, and, if he does not, take a decision on his employment through a fair process. 33. The Appellant did none of these things. It produced no show cause letter, no letter to the Respondent’s last known 25

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Elrc Appeal No. E196 Of 2025 address, no record of a telephone call or text message, no notice to the labour office, and no letter terminating the employment on account of desertion. On its own case, it did nothing at all. It told the trial court, and repeats before this Court, that it learnt that the Respondent had left only when it was served with the suit, some six months after his departure. An employer that does not notice, for six months, that a guard entrusted with its property has stopped reporting for duty cannot credibly assert that it has proved his intention to abandon his employment. The learned magistrate was right to find that desertion was not proved. 34. There is a further, and in my view fundamental, difficulty for the Appellant. Instead of supporting the pleaded defence of desertion, the three witness statements it filed introduced a completely new dimension. Each of them stated that the Respondent “resigned on his own volition and without notice”, that he “resigned willingly from employment” and that the Appellant “settled his dues in accordance with the law”. The two assertions cannot reasonably stand together. An employee who deserts leaves without a word, and his 26

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Elrc Appeal No. E196 Of 2025 intention must be inferred from his conduct. An employee who resigns communicates his decision to leave. The Appellant could not, at once, have received no word from the Respondent and have received his resignation. The inconsistency goes to the heart of the defence and fatally undermines it. Indeed, the Appellant’s account of what happened on 1st April 2020 is also inconsistent with its pleading, at paragraph 4 of its response, that the Respondent was a day guard, while its own witnesses speak of his “redeployment… to night duty”. By contrast, the Respondent’s account, that he left, and why he left, was consistent from his demand letter of 16th September 2020 to his pleading, his statement and his submissions. 35. The Appellant’s own statement that the Respondent resigned is, moreover, an admission of the very fact on which the Respondent’s case rests: that the employment was brought to an end by the Respondent’s act of leaving. What remained was the reason for that act. 27

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Elrc Appeal No. E196 Of 2025 (f) Issue (iv): Was the Respondent constructively dismissed? 36. Constructive dismissal occurs where the employer, without reasonable and proper cause, conducts itself in a manner that amounts to a repudiatory breach of a fundamental term of the contract of employment, and the employee, in response to that breach, accepts the repudiation and leaves, with or without notice. The employee resigns, but the law treats the resignation as a dismissal by the employer, because it is the employer’s conduct, and not the employee’s free choice, that has brought the relationship to an end. 37. In Coca-Cola East & Central Africa Ltd v Maria Kagai Ligaga (supra), the Court of Appeal observed that the key element in the definition is that the employee must have been entitled to leave without notice because of the employer’s conduct, and that the phrase “entitled to leave” admits of two interpretations, giving rise to two branches of the test. The first is the unreasonableness test: the 28

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Elrc Appeal No. E196 Of 2025 employee could leave when the employer’s behaviour towards him was so unreasonable that he could not be expected to stay. The second is the contractual test: the employer’s conduct is so grave that it constituted a repudiatory breach of the contract of employment. The Court noted that the contractual test is the narrower of the two, and, following Western Excavating (ECC) Ltd v Sharp [1978] ICR 222, held that it is “narrow, precise and appropriate to prevent manipulation or overstretching the concept of constructive dismissal”. It affirmed and adopted the contractual test. Accordingly, whenever an employee alleges constructive dismissal, the court must evaluate whether the employer’s conduct was such as to constitute a repudiatory breach of the contract. The Court set out the relevant principles as follows: “What are the fundamental or essential terms of the contract of employment? Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer? The conduct of the employer must be a fundamental or 29

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Elrc Appeal No. E196 Of 2025 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. An objective test is to be applied in evaluating the employer’s conduct. There must be a causal link between the employer’s conduct and the reason for employee terminating the contract i.e. causation must be proved. An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination. The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach. The burden to prove repudiatory breach or constructive dismissal is on the employee.” 38. This Court has applied these principles on several occasions. In Stephen Michuki v East African Safari Air Express 30

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Elrc Appeal No. E196 Of 2025 Limited [2022] KEELRC 341 (KLR), it held that where an employer fundamentally alters a core term of the contract, such as the employee’s remuneration, without his consent, the alteration may amount to a fundamental breach on which the employee can found a successful claim for constructive dismissal. In Mwandale v Integrated Science and Engineering Projects Limited [2024] KEELRC 807 (KLR), the Court held that the employer’s failure to pay the claimant’s salary for three months was a repudiation of the contract, which the claimant accepted by her letter of resignation, and that she had been constructively dismissed. The question in each case is objective. It is not whether the employee was unhappy, but whether the employer, by its conduct, breached a term that goes to the root of the relationship, and whether the employee left because of it. 39. What, then, were the fundamental terms of the Respondent’s contract? Some are written. Others are implied into every contract of employment by law. Among the latter is the employer’s duty to take reasonable care for the health and safety of its employee. The duty is given statutory 31

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Elrc Appeal No. E196 Of 2025 expression in section 6 of the Occupational Safety and Health Act, 2007, which obliges every occupier to ensure the safety, health and welfare at work of all persons working in its workplace. Closely allied to it is the implied duty of mutual trust and confidence: Malik v Bank of Credit and Commerce International SA [1998] AC 20, a decision which the Court of Appeal adopted in Coca-Cola. These are not peripheral terms. An employee places his body, his time and his health at the service of the employer. He is entitled, in return, to expect that the employer will not knowingly put that health at risk. 40. It follows, in my view, that a failure by an employer to take reasonable account of an employee’s documented medical condition is a breach of a fundamental term of the contract of employment. Where an employee places before his employer a medical opinion that a particular aspect of his duties endangers his health, and asks to be accommodated, the employer is bound to respond. It need not accept the opinion uncritically. It may seek a second opinion, discuss alternatives with the employee, or, if accommodation is 32

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Elrc Appeal No. E196 Of 2025 genuinely impossible, consider the matter through a fair process. What it may not do is ignore him, and leave him to choose between his health and his livelihood. An employer who does so shows, objectively, that it is no longer willing to be bound by one of the most essential obligations it owes. Such conduct is also a breach of the employee’s right to fair labour practices under Article 41(1) of the Constitution. The duty to accommodate sick or injured employees, as the Court observed in Kenya Plantation and Agricultural Workers Union v Rea Vipingo Plantations Limited & another (supra), is also grounded in the right to equality of opportunity under section 5 of the Employment Act and Article 27 of the Constitution. A breach of this nature can properly found a successful claim for constructive dismissal. In the matter before the trial court, it did. 41. I have re-evaluated the evidence. The Respondent’s case, in his pleading and his adopted statement, was that he underwent surgery in September 2019; that he was assigned night duty in February 2020; that on 25th February 2020 a doctor at the Coast General Teaching and Referral Hospital 33

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Elrc Appeal No. E196 Of 2025 advised against his working night shifts; that he presented the advice to the Human Resource Manager that day and asked for day duty; that he received no response; that he wrote in March 2020, warning that he would leave on 1st April 2020; and that he left on that date when nothing was done. That account is detailed, specific as to dates and persons, and consistent throughout. 42. The Appellant’s answer was a bare denial that it knew of the condition. It did not call the Human Resource Manager to whom the letter was presented and the request made, or explain why his account was not before the Court. None of its three witnesses claimed any personal knowledge of the events of February and March 2020, and their statements are in substantially identical terms. Their assertion that the Appellant was unaware of the condition is undermined by their own account that he was redeployed to night duty, which confirms the Respondent’s account of the assignment, and by the Appellant’s inconsistent positions on how the employment ended. Weighing the two accounts on the balance of probabilities, I find the Respondent’s the more 34

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Elrc Appeal No. E196 Of 2025 probable. The Respondent proved that he placed his medical condition, and the doctor’s recommendation, before the Appellant, and that the Appellant did not act on it. 43. The Appellant contends, in grounds 5 and 6, that the medical documents were expunged from the record and that the learned magistrate relied on them nonetheless. I have searched the record for support for this contention and have found none. The record of appeal, which the Appellant compiled, contains no proceedings and no order expunging any document. It contains the doctor’s letter of 25th February 2020 and the medical sick sheet of April 2020 as part of the Respondent’s list of documents. The Respondent’s submissions before the trial court record that the documents on his list were produced as exhibits 1 to 6, a range that includes both medical documents. Even the Appellant’s own submissions below stated only that the Respondent “sought” to have the documents expunged. The duty to place before this Court the material on which a ground of appeal rests lies on the appellant. The Appellant has not discharged it. In any event, the finding does not 35

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Elrc Appeal No. E196 Of 2025 stand on the letter alone. It rests on the Respondent’s evidence in chief, which, under the procedure the parties chose, stood untested and was not displaced by any credible evidence from the Appellant. 44. The remaining elements of the Coca-Cola test are satisfied. The Appellant’s conduct, viewed objectively, amounted to a repudiatory breach of a fundamental term. There was a clear causal link between the breach and the Respondent’s departure: he said so in advance, in writing, and left on the very date he had given. He did not acquiesce in or waive the breach; he complained twice and then left within about five weeks of the medical advice. The Respondent discharged his burden. 45. The Appellant’s reliance on the Respondent’s conduct in 2017, when he was suspended for fighting at the workplace, does not assist it. That incident was dealt with and closed more than three years before the events in issue. It has no bearing on whether the Appellant breached its obligations in February and March 2020. 36 Nor does the Appellant’s

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Elrc Appeal No. E196 Of 2025 complaint about the learned magistrate’s observation on the employer’s duty to look for an absent employee. That observation was made in answer to the Appellant’s own plea of desertion, and it was correct. 46. The holding that the Respondent was constructively dismissed was not, therefore, in error. Grounds 1, 4 to 12, 18 and 19 fail. (g) Issue (v): The counterclaim 47. The Appellant is right that the learned magistrate did not determine its counterclaim. A counterclaim is a cross-suit. It must be determined, whether it succeeds or fails, and the failure to determine it was an error. That error does not, however, require that the matter be remitted. Under section 78(1) of the Civil Procedure Act, this Court, sitting as a first appellate court, has power to determine a case finally, and all the material necessary to determine the counterclaim is on the record. I proceed to determine it. 48. The claims for Kshs. 150,000, for a stolen consignment, and Kshs. 50,000, for overtime paid to cover the Respondent’s 37

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Elrc Appeal No. E196 Of 2025 shifts, are claims for special damages. The law on special damages is settled. They must not only be specifically pleaded, but also strictly proved. In Hahn v Singh [1985] KECA 68 (KLR), the Court of Appeal held that special damages “must be not only claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act.” The principle was reaffirmed in Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR). 49. The Appellant pleaded these sums, but did not prove them as required, or at all. Its list of documents contained the Respondent’s contract, leave forms, a suspension letter of 2017 and an apology letter of 2017. There was no complaint from the passenger, no inventory or valuation of the goods, no evidence of any payment to the passenger, no duty roster, no overtime records and no payroll. There was not even a statement from anyone with knowledge of the loss or of the overtime. The allegations were nothing more than bare assertions. Both claims fail. 38

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Elrc Appeal No. E196 Of 2025 50. The claim for one month’s salary in lieu of notice under section 36 of the Employment Act also fails. It is premised on the Respondent having resigned or deserted without cause. I have found that he left in response to the Appellant’s repudiatory breach. An employee who accepts his employer’s repudiation of the contract is entitled to leave without notice. As the Court of Appeal put it in Coca-Cola, he “may leave with or without notice so long as the employer’s conduct is the effective reason for termination.” He cannot be made to pay for notice he was not obliged to give. 51. The claim for twelve months’ salary as “compensation for unlawful termination” under section 49(1)(c) of the Employment Act is misconceived in law. Section 49 provides the remedies available for wrongful dismissal and unfair termination. It is designed to provide a remedy to an employee whose employment has been unfairly terminated, or who has been wrongfully dismissed summarily, by the employer. Its language and its scheme, including the factors in section 49(4) such as the employee’s wishes, his prospects of finding comparable employment, and his length 39

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Elrc Appeal No. E196 Of 2025 of service, are directed at the employee. It cannot avail a remedy to an employer. The decision in Kenya Revenue Authority v Mwongela, relied on below, concerned an award to an employee and does not suggest otherwise. 52. The counterclaim therefore fails in its entirety, and it is dismissed. (h) Issue (vi): The reliefs 53. Notice pay. The Respondent was constructively dismissed. The Appellant’s repudiation, which he accepted, brought the employment to an end without the notice required by section 35(1)(c) of the Employment Act and by the contract. The award of one month’s salary in lieu of notice, Kshs. 16,584.95, was properly made. Ground 16 fails. 54. Compensation. Compensation under section 49(1)(c) of the Employment Act, of up to twelve months’ gross salary, is a discretionary remedy. Section 49(4) sets out the factors that guide the discretion, among them the circumstances in which the termination took place, the length of the employee’s service, his reasonable expectation of the length 40

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Elrc Appeal No. E196 Of 2025 of his employment, and his prospects of securing comparable employment. Because it is a discretion, a court making an award under the provision must explain its reasons for exercising it as it does. That is all the more so where it awards the maximum. As the Court of Appeal observed in a passage it reproduced in Kenfreight (E.A) Limited v Benson K. Nguti [2016] KECA 409 (KLR), where a trial court “did not state why it opted to give the remedy provided under section 49(1)(c)”, and “said nothing about the reasons that led him to exercise his discretion in the manner he did”, the award could not stand. 55. The learned magistrate awarded the maximum of twelve months’ salary without advancing any reason for doing so. That was an error in the exercise of discretion, and it entitles this Court to interfere. Considering the length of the Respondent’s service with the Appellant, of about eight years and four months, the manner in which the employment ended, and the absence of any contribution by the Respondent to the circumstances of his exit, I reduce the 41

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Elrc Appeal No. E196 Of 2025 award to eight months’ gross salary: Kshs. 16,584.95 × 8 = Kshs. 132,679.60. Ground 17 succeeds to that extent. 56. Gratuity. The award of gratuity was properly made, and I am not persuaded by the Appellant’s submissions to the contrary. The Appellant’s argument is that no contract provided for gratuity. But the award was not founded on the contract. It was founded on subsidiary legislation: paragraph 17(1) of the Regulation of Wages (Protective Security Services) Order, 1998, which provides that after five years’ service with an employer, the employee shall be entitled to eighteen days’ pay for every completed year of service by way of gratuity, based on the employee’s wage at the time of termination. The Appellant admitted that it engaged the Respondent as a security guard from 7th December 2011 to 1st April 2020. He served more than five years, and eight complete years. Terms prescribed by a wage regulation order are a floor below which the parties cannot contract, and they bind the employer whether or not the contract repeats them. Bamburi Cement Ltd v Kilonzi, and the other authorities cited by the Appellant, concerned gratuity 42

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Elrc Appeal No. E196 Of 2025 as a contractual or discretionary benefit. They cannot help the Appellant against an entitlement created by statute. Nor does section 35(6)(d) of the Act assist it, since that provision excludes service pay under section 35(5), not a gratuity conferred by a wage order. The award of Kshs. 91,854.72 is upheld. Ground 15 fails. 57. Underpayment. The claim for underpayment was not established. The Respondent claimed that between May and December 2013 he was paid Kshs. 9,000 when the applicable minimum wage was Kshs. 9,780.95. The only wage order he placed before the trial court was the Regulation of Wages (General) (Amendment) Order, 2018, Legal Notice No. 2 of 2018. By its own terms, that Order came into force on 1st May 2018. It could not govern wages paid in 2013, and it did not prescribe the figure of Kshs. 9,780.95 on which the claim was computed. No wage order applicable to 2013 was produced. The learned magistrate’s finding that there was underpayment “according to the wage order of the year 2013” had no basis in the evidence. The award of Kshs. 6,247.60 is set aside. 43

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Elrc Appeal No. E196 Of 2025 58. Public holidays. The claim for public holidays was pleaded with specificity. The Respondent identified the holidays he worked, namely New Year’s Day, Good Friday, Easter Monday, Labour Day, Madaraka Day, Mashujaa Day, Jamhuri Day, Christmas Day, Boxing Day and Idd-ul-Fitr, the period over which he worked them, and the daily rate at which he claimed. The Appellant’s answer was a bare denial, coupled with an alternative plea that if he did work on those days he was paid. Under sections 10(6) and 74 of the Employment Act, the employer is the custodian of the employee’s employment records, including records of attendance and of the wages paid. Section 10(7) places on the employer who fails to produce the records the burden of disproving the term alleged. As the custodian of the records, the Appellant was obliged to produce evidence to displace the Respondent’s assertion: a duty roster, attendance records, or payroll showing that holidays were either not worked or paid at the prescribed rate. It produced none. The claim was not time-barred either. Pay for work on public holidays is a continuing injury within section 89 of the Act, and the suit 44

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Elrc Appeal No. E196 Of 2025 was filed in October 2020, within twelve months of the cessation of the employment on 1st April 2020. The award of Kshs. 51,030.40 is upheld. Grounds 13 and 14 fail. (i) Issue (vii): Costs 59. Under section 12(4) of the Employment and Labour Relations Court Act, the Court may make such orders as to costs as it considers just. The appeal has succeeded only to a narrow extent, on the award of compensation and the claim for underpayment. On the principal questions, the Respondent has successfully resisted it. The Appellant shall bear the costs of the appeal. F. DISPOSITION 60. The appeal succeeds only to the narrow extent set out above. It is otherwise substantially dismissed. I make the following orders: (a) The finding of the trial court that the Respondent was constructively dismissed is upheld. 45

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Elrc Appeal No. E196 Of 2025 (b) The Appellant’s counterclaim dated 23rd December 2020, which the trial court did not determine, is dismissed. (c) The award of compensation of twelve months’ salary, Kshs. 199,019.40, is set aside and substituted with an award of eight months’ gross salary, Kshs. 132,679.60. (d) The award for underpayment, Kshs. 6,247.60, is set aside. (e) The judgment of the trial court is accordingly varied, and judgment is entered for the Respondent against the Appellant as follows: (i) one month’s salary in lieu of notice, Kshs. 16,584.95; (ii) pay for public holidays worked, Kshs. 51,030.40; (iii) gratuity, Kshs. 91,854.72; (iv) compensation under section 49(1)(c) Employment Act, Kshs. 132,679.60; Total: Kshs. 292,149.67. 46 of the

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Elrc Appeal No. E196 Of 2025 (f) The sum in (e) shall attract interest at court rates from the date of the trial court’s judgment until payment in full. The trial court’s order on the costs of the suit is upheld. (g) The Appellant shall bear the Respondent’s costs of this appeal. DATED, SIGNED AND DELIVERED at MOMBASA this 30TH day of September 2026. ……………………………………………………. OCHARO KEBIRA JUDGE 47

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