Board of Governors, Cardinal Otunga High School, Mosocho & 2 others v Elizabeth Kwamboka Khaemba [2016] KECA 486 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether unilateral reassignment of duties outside the contract amounts to termination
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
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.
Whether the respondent absconded duty
The respondent did not abscond; her refusal to take up the new assignment was a legitimate response to the employer's repudiatory conduct
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.
Whether the appellate court should interfere with quantum
Quantum not appealed against cannot be disturbed
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs to the respondent
- 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)
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Zamzam v Gulf African Bank Limited (Cause E006 of 2022) [2025] KEELRC 165 (KLR)[2025] KEELRC 165 (KLR)30 Jan 2025
Cite this brief
#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.