Bins (Nairobi) Services Limited v Hardard Macharia Kariamburi (Civil Appeal E670 of 2024) [2025] KECA 1726 (KLR)

Applying Western Excavating and Leena Apparels, the court held that constructive dismissal turns primarily on the employer's conduct. The appellant kept the respondent in the dark for about five months without salary, replaced him substantively, and told the US Embassy he had left its employment. The conduct showed an intention not to be bound by the contract and constituted repudiation justifying the respondent's resignation. The court agreed with the trial judge's analysis and conclusion.

Relying on Gatuma v Kenya Breweries and the authorities cited therein, the court held that unilateral changes to remuneration without informing the employee amount to an unfair labour practice and may amount to constructive dismissal. The memo reducing salary and the email sending the respondent on unpaid leave were issued without consultation or approval, so the trial judge's award of salary for the five months of unpaid leave was upheld.

Although section 35(6) disentitles NSSF-registered employees from statutory service pay, the court held that an employer's voluntary, admitted willingness to pay service pay as a practice is not contrary to statute; nothing stops an employer from being more generous than the Act requires. DW1 and DW2 expressly testified the appellant was willing to pay, so the cross-appeal succeeded on this head and service pay was awarded as pleaded.

The court endorsed the trial judge's finding that the matters raised pointed to breach of the employment contract adequately redressed under the Employment Act. Since the law provides a specific remedy of compensation for unfair termination, the additional heads of damages could not be granted. The court also found the respondent failed to discharge the burden of proving discrimination on a prohibited ground, as his own conduct in managing the crisis negated any discriminatory treatment.