Andrew Odongo Omondi v Coca Cola Equator Bottlers Ltd
The bottom line
#Kenya's Court of Appeal confirmed that an employee who resigns without protesting contract changes cannot later claim constructive dismissal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ELRC erred by holding that the respondent did not constructively dismiss the appellant
Key legal issues
#Whether the appellant proved constructive dismissal
The appeal fails; the appellant did not discharge the burden of proving constructive dismissal.
The contract expressly contemplated transfer anywhere in Kenya, assignment of duties not usually associated with normal work, amendment of working hours and unpaid extra hours. Variations within the parties' contemplation cannot be fundamental breach. The appellant led no evidence of duties outside the job description, insults, or complaints to the employer, and his resignation letter thanked the employer, indicating voluntary resignation.
Whether unilateral assignment of new duties amounted to significant breach going to the root of the contract
No, because the contract reserved the employer's right to transfer the employee to other positions and duties and to assign duties not specified.
Distinguishing Cardinal Otunga High School v Khaemba, where the cateress had no such contractual flexibility clause, the Court held that here the alleged variations were expressly agreed. To be fundamental, variations had to be beyond what the parties contemplated and agreed.
Legal principles established
#- Variations in place of work, duties and working hours that are within the contemplation and agreement of the parties cannot of themselves constitute fundamental breach of the employment contract.
- On a first appeal the Court must exhaustively reappraise the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses.
- An employee alleging constructive dismissal bears the burden of proving a fundamental breach going to the root of the contract, resignation in response to it, and absence of waiver.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court at Kisumu
- ELRCC No. 299 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Employment and Labour Relations Court Act/Court of Appeal jurisdiction (not expressly stated in the judgment)
Relief refused
#Declaration of constructive dismissal and damages equivalent to 12 months' gross salary, unlawful deductions, pay in lieu of notice and certificate of service reliefs
Appellant failed to discharge the burden of proving constructive dismissal; resignation letter showed no grievance
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, this appeal has no merit and is hereby dismissed with costs to the respondent. It is so ordered.
To the extent that those variations were within the contemplation and agreement of the parties, they cannot, of and by themselves, constitute a fundamental breach of the contract of employment dated 30th October 2010.
That letter, coupled with the total lack of evidence of protest or objection on the part of the respondent, strongly suggests that the appellant's resignation had nothing to do with a hostile work environment constituting constructive dismissal.
It is a first appeal and, therefore, the duty of this Court is to exhaustively reappraise the evidence that was adduced before the trial court and come to its own independent decision.
Issues in the judgment
#Appellant's surname appears inconsistently within the judgment
Date of the written warning is stated inconsistently
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Odongo Omondi v Coca Cola Equator Bottlers Ltd", Case Analysis (2026). Civil Appeal No. E224 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1949/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.