Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowed· [2015] KEELRC 94 (KLR)

Patrick Kiogora Moses v Mobicom (K) Limited [2015] KEELRC 94 (KLR)

Employment and Labour Relations Court
11 December 2015
BOByram Ongaya
1,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that an employer who makes a job impossible to continue - by unfair transfers without notice or support - has effectively fired the employee and must compensate them fully.

What this practically means

#

Executive summary

#
The claimant, previously a branch manager at the respondent's Meru branch, challenged his summary dismissal. On 8 January 2015 he was informed of an immediate transfer to Maua, made to hand over overnight, denied a requested week to relocate, and refused a transfer allowance. Unable to relocate without resources, he considered himself constructively terminated. He sought declarations that the dismissal was unlawful, unfair and inhuman, terminal dues and compensatory damages of Kshs.259,615.00, interest, and costs. The respondent denied terminating his employment and filed a defence and counterclaim. The court framed three issues: whether a termination took place, whether it was unfair, and whether remedies were due. It found the claimant's account true and held that by denying sufficient notice and facilitation the employer made it impossible to continue, entitling the claimant to treat himself as constructively terminated. Applying its earlier reasoning in Joseph Mwangi v Board of Governors, Mwiruti Secondary School, the court held the conduct undermined the trust and confidence inherent in employment. The termination was unfair: the claimant's valid grievance could not found termination under section 46(h) of the Employment Act, and failure to provide a grievance procedure contravened Article 41 of the Constitution. Remedies awarded were pay for days worked in January 2015 (Kshs.4,615.00), one month's pay in lieu of notice (Kshs.15,000.00) under section 35(1)(c), 12 months' compensation (Kshs.180,000.00) as the claimant contributed nothing to the termination, and two years' untaken leave pay (Kshs.30,000.00). Judgment for the claimant: declaration of unfair, unlawful and inhuman termination, payment of Kshs.229,615.00 by 1 February 2016 failing which interest at court rates, and costs of the suit.

Key legal issues

#
01

Whether a termination of employment took place

Holding

The termination was constructive; the claimant was entitled to consider himself terminated.

Reasoning

The claimant was transferred from Meru to Maua with immediate effect, denied a week's notice, denied transfer allowance and given no opportunity to relocate. The court found the claimant's account true and that the employer's breach of obligations made continued employment impossible, entitling him to treat the contract as terminated.

p. 2
02

Whether the constructive termination was unfair

Holding

The constructive termination was unfair.

Reasoning

The claimant had a valid grievance about the short notice and lack of facilitation, which under section 46(h) of the Employment Act could not be a valid reason for termination. The respondent failed to accord him a genuine grievance management procedure, an unfair labour practice contravening Article 41 of the Constitution.

p. 2
03

Whether the claimant was entitled to the remedies prayed for

Holding

The claimant was awarded pay for days worked, one month's pay in lieu of notice, 12 months' salary as compensation, and pay for two years' untaken annual leave, totalling Kshs.229,615.00.

Reasoning

The court found the claimant contributed nothing to his constructive dismissal, handed over diligently and wished to continue working; the respondent's treatment of his pleas was inconsiderate and insensitive, justifying the maximum 12 months' compensation. Notice pay was awarded under section 35(1)(c) of the Employment Act.

p. 3

Legal principles established

#
  • Conduct by the employer that undermines the high trust, confidence and cooperation in the employment relationship, occasioning its breakdown, amounts to termination of the employment contract.
  • Where the employer makes it difficult for the employee to continue in employment by denying sufficient notice and facilitative resources, the employee is entitled to consider himself terminated.
  • Failure to accord an employee a genuine grievance management procedure amounts to an unfair labour practice contravening Article 41 of the Constitution.

Court orders

#
  1. 1.Declaration that the termination of the claimant's employment by the respondent was unfair, unlawful and inhuman
  2. 2.Respondent to pay the claimant Kshs.229,615.00 by 01.02.2016 failing which interest to be payable at court rates from the date of judgment till full payment
  3. 3.Respondent to pay the claimant's costs of the suit

Authorities

#

Legislation

  • Employment Act, 2007section 46(h)
  • Employment Act, 2007section 35(1)(c)
  • Constitution of Kenya, 2010Article 41

Cases cited (1)

  • Joseph Mwangi – Versus - the Board of Governors, Mwiruti Secondary School
    [2012]eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Article 41 of the Constitution and Employment Act, 2007 applied)

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.

Cite this brief

#

Cite this brief

Caselaw, "Patrick Kiogora Moses v Mobicom (K) Limited [2015] KEELRC 94 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/94/eng@2015-12-11

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