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Court of AppealDismissedCivil Appeal No. 55 of 2015· [2016] KECA 486 (KLR)

Board of Governors, Cardinal Otunga High School, Mosocho & 2 others v Elizabeth Kwamboka Khaemba [2016] KECA 486 (KLR)

Court of Appeal of Kenya
2 June 2016
1,883 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that an employer who reassigns an employee's duties without consultation can be liable for constructive dismissal.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A.) dismissed this appeal against the Industrial Court's award to a school cateress. The respondent, employed since 2004, was placed on three months' unexplained compulsory leave and, on resuming duty on 1st June 2013, was served a letter assigning her a supervisory role over cleanliness of the school boarding area. She treated the unilateral variation as termination and claimed her entitlements. The Industrial Court (Wasilwa, J.) held that her contractual duties were confined to the kitchen and Dining Hall, that the reassignment breached section 10(5) of the Employment Act requiring consultation before contractual changes, and that the variation was tantamount to unfair termination, awarding notice pay, twelve months' salary as damages, and service pay. On appeal, the appellants argued the new duties fell within her role and that she had absconded. The Court, in a single judgment, applied the constructive dismissal doctrine from Western Excavating v Sharp as adopted in Coca Cola v Ligaga, holding that the unilateral assignment of duties outside her professional competence was a significant breach going to the root of the contract. The respondent was entitled to treat herself as discharged and had not absconded. Quantum was not appealed and was left undisturbed. The appeal was dismissed with costs to the respondent. This judgment binds subordinate courts and tribunals on unilateral variation of employment contracts and constructive dismissal.

Key legal issues

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01

Whether unilateral reassignment of duties outside the contract amounts to termination

Holding

Unilateral assignment of duties completely outside the scope of employment, without consultation, violates section 10(5) of the Employment Act and constitutes a significant breach going to the root of the contract, entitling the employee to treat herself as constructively dismissed

Reasoning

The respondent was employed as a cateress with duties confined to the kitchen and Dining Hall. Assignment of a supervisory role over cleanliness of the boys' boarding area, a housekeeper's duty, was outside her professional competence and applied-for role. The employer never consulted her before the variation, breaching section 10(5) of the Employment Act. Following the constructive dismissal doctrine in Western Excavating as adopted in Coca Cola v Ligaga, the breach went to the root of the contract, so the respondent was entitled to treat herself as discharged and to damages under section 49.

p. 4
02

Whether the respondent absconded duty

Holding

The respondent did not abscond; her refusal to take up the new assignment was a legitimate response to the employer's repudiatory conduct

Reasoning

The appellants contended the respondent absconded after receiving the reassignment letter. The court found instead that it was the employer's unilateral variation that repudiated the contract, and the respondent's refusal to take up the new assignment was consistent with treating the contract as discharged. Absconding could not arise where the employee's rejection of altered terms was a justified response to the employer's breach.

p. 3
03

Whether the appellate court should interfere with quantum

Holding

Quantum not appealed against cannot be disturbed

Reasoning

The appellants did not appeal against the quantum of the trial court's awards; the respondent also urged non-interference. In the absence of any challenge to quantum, the Court had no basis to interfere with the damages awarded by the Industrial Court.

p. 4

Legal principles established

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  • An employer who unilaterally varies an employee's contractual duties without consultation breaches section 10(5) of the Employment Act, and where the variation is a significant breach going to the root of the contract, the employee may treat herself as constructively dismissed

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Quantum of damages awarded by the trial court left undisturbed (one month's salary in lieu of notice of Kshs.10,500; twelve months' salary of Kshs.126,000 as damages for unlawful termination; fifteen days' salary for each year served of Kshs.31,500)

Authorities

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Legislation

  • Employment Actsection 10(5)
  • Employment Act, 2007section 49

Cases cited (2)

  • COCA COLA EAST & CENTRAL AFRICA LIMITED v MARIA KAGAI LIGAGA
    [2015] eKLR
  • WESTERN EXCAVATING (ECC) LTD v SHARP
    [1978] 1 CR 222
On appeal from
Industrial Court of Kenya at Kisumu
Industrial Cause No. 190 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate framework (memorandum of appeal containing 14 grounds; the judgment does not cite a specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Board of Governors, Cardinal Otunga High School, Mosocho & 2 others v Elizabeth Kwamboka Khaemba [2016] KECA 486 (KLR)", Case Analysis (2016). Civil Appeal No. 55 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/486/eng@2016-06-02

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