Mbithi v Mbilika & 3 others (Sued as the Committee Members of District Church Council Committee (AIC Muumandu DCC)) (Cause E114 of 2021) [2023] KEELRC 3001 (KLR)
The bottom line
#A Kenyan court dismissed a pastor's claim that his church employer forced him out, ruling he deserted the job instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Claimant failed to prove constructive dismissal on a balance of probabilities; the compulsory leave and retirement letter were justified
The court found from uncontradicted DCC minutes that the Claimant refused to work with Pastor Dorcas Mwanzia or compromise, justifying the compulsory leave. The retirement letter was based on the ID showing birth in 1951, was retracted upon production of a birth certificate, and the court found nothing malicious in the decision. The employer's conduct therefore did not amount to a repudiatory breach.
Whether the Claimant deserted the workplace
The court found desertion proved by the Respondent
The Claimant admitted declining to resume duty on 4th October 2020 despite written requests, started a church (Cornerstone) rather than a mere fellowship, and applied for ministry affiliation. The Respondent wrote to him about the desertion. This was cogent evidence he had decided to leave and had already done so.
Entitlement to reliefs
All reliefs refused and suit dismissed
Having found no constructive dismissal but desertion, the declaration and 12 months' compensation fell away; salary in lieu of notice was unsustainable; the claim for salary to the purported retirement date was anticipatory earnings with no established entitlement. The suit was dismissed in its entirety with each party bearing own costs.
Legal principles established
#- The essential element of constructive dismissal is the employer's conduct which must leave the employee with no option but to quit
- An employer alleging desertion must show efforts made to reach the employee and put them on notice that termination is under consideration
Court orders
#- 1.The suit is dismissed
- 2.Parties shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbithi v Mbilika & 3 others (Sued as the Committee Members of District Church Council Committee (AIC Muumandu DCC)) (Cause E114 of 2021) [2023] KEELRC 3001 (KLR)", Case Analysis (2023). Cause No E114 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3001/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.