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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 3204 (KLR)

Ngure v Huawei Technologies (Kenya) Co Ltd (Cause 335 of 2018) [2023] KEELRC 3204 (KLR)

Employment and Labour Relations Court
5 December 2023
JGJacob Gakeri
3,164 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who lets a new hire report for work then blocks them from starting owes compensation—even if the employee never worked a single day.

What this practically means

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Executive summary

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The Claimant, offered employment as Senior Channel Manager at Kshs.520,000/= monthly, accepted the Respondent's written offer, inserted 11th September 2017 as the reporting date as instructed by email, but was told on reporting that he could not commence work pending organisation of terms of reference. He never rendered any services. He sued for breach of contract, misrepresentation, constitutional violations and unfair termination, seeking salary arrears, notice pay, 12 months' compensation and aggravated/exemplary damages. The Respondent admitted making and the Claimant accepting the offer, but attributed the impasse to the electoral violence surrounding the 2017 presidential re-run, business uncertainty, and awaited approval from its Hong Kong head office, adding that it offered an alternative position through Insight Management Consultants which the Claimant declined. The court found an employment relationship existed, since the offer gave the Claimant liberty to insert the reporting date. It rejected the plea of frustration, holding the Respondent adduced no evidence of the alleged unrest or of any pending approval. The refusal to allow the Claimant to take up his duties was a repudiatory breach amounting to constructive dismissal. However, the Claimant failed to prove violations of Articles 28 and 41, and his constitutional claim was dismissed as the wrongdoing lay in contract. Salary arrears were declined as no services were rendered; aggravated and exemplary damages failed for want of proof of malice. The court entered judgment for the Claimant with a declaration of breach, 14 days' salary in lieu of notice, three months' gross salary as compensation, costs and interest, having reduced the 12 months sought under Section 49(4) of the Employment Act partly because the Claimant declined a mitigation offer.

Key legal issues

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01

Existence of an employment relationship

Holding

The signed offer in which the Claimant inserted the reporting date created a binding employment relationship effective 11th September 2017, contrary to the Respondent's claim that the reporting date was never agreed

Reasoning

The email of 7th August 2017 instructed the Claimant to sign, insert the reporting date and return the offer. He inserted 11th September 2017. In employment contracts the employer makes the offer which the prospective employee must accept, and acceptance created the employment relationship. The Respondent's own witness confirmed the signed offer constituted an employment relationship effective 11th September 2017.

p. 4
02

Frustration of the employment contract

Holding

The Respondent failed on a balance of probabilities to prove frustration by political unrest, economic uncertainty or an awaited head-office approval

Reasoning

No evidence was tendered as to the nature, duration or effect of the alleged political unrest or economic uncertainty, nor as to when the contract was allegedly frustrated. No letter or email evidencing a pending Hong Kong approval was availed, and the offer letter did not make employment conditional on approval. The frustration plea therefore failed.

p. 5
03

Constructive dismissal

Holding

The Respondent's refusal to receive the Claimant and subsequent substitution of a third-party offer amounted to a repudiatory breach constituting constructive dismissal

Reasoning

Applying the contractual test from Western Excavating and Coca Cola v Ligaga, the Respondent denied the Claimant the opportunity to work for over four months with unfulfilled promises, then offered employment through a third party. This was a repudiatory breach going to the root of the contract entitling the Claimant to treat the employment as repudiated.

p. 6
04

Quantum of compensation under Section 49

Holding

Compensation fixed at 3 months' gross salary instead of the 12 months sought, considering non-rendering of services, probationary status, failure to mitigate and no contribution to the termination

Reasoning

Under Section 49(1)(c) and 49(4) of the Employment Act, the court weighed that the Claimant rendered no services, the contract was probationary for 6 months, he maintained communication and did not contribute to the termination, but he declined an alternative offer to mitigate his loss. Three months' gross salary was deemed fair.

p. 7

Legal principles established

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  • A contract is frustrated when further performance is rendered impossible, illegal or commercially useless by unforeseen supervening events for which neither party is to blame, and the party pleading frustration must adduce credible evidence of it
  • An employer's refusal to allow an employee who has accepted an offer to take up his duties constitutes a repudiatory breach amounting to constructive dismissal
  • An employee bears the burden of proving constitutional violations; breaches of an employment contract fall in the domain of contract, not constitutional law

Court orders

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  1. 1.Declaration that the Respondent breached the Claimant's employment contract
  2. 2.Award of 14 days salary in lieu of notice
  3. 3.Award of the equivalent of 3 months gross salary as compensation for constructive dismissal
  4. 4.Costs of the suit with interest from the date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Articles 48, 159(2)(d)
  • Employment Act, 2007Sections 49(1)(c), 49(4)
  • Fair Administrative Action ActSection 4(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (13)

  • Fedelix Mwendwa Muli V Bamburi Cement Ltd
    (2018) eKLR
  • Esther Njeri Maina V Kenyatta University
    (2020) eKLR
  • John Muikiria Waweru V Judicial Service Commission
    (2020) eKLR
  • Leena Apparels (EPZ) Ltd V Nyevu Juma Ndokolani
    (2018) eKLR
  • Premier Construction Ltd V Josephat Bwire Lukale & 5 others
    (2017) eKLR
  • Ngunjiri Wambugu V Inspector General of Police & 2 others
    (2019) eKLR
  • Anytime Ltd V Fredrick Mutobera Omuraya
    (2022) eKLR
  • Western Excavating ECC Ltd V Sharp
    (1978) 2 WLR 344
  • Coca Cola East & Central Africa Ltd V Maria Kagai Ligaga
    (2015) eKLR
  • Rookes V Barnard & others
    (1964) AC 1129
  • Obonyo & another V Municipal Council of Kisumu
    (1971) EA 91
  • Miguna Miguna V Standard Group Ltd and 4 others
  • John V GM Ltd
    (1993) QB 58
Jurisdiction invoked
First-instance employment and labour relations dispute; court exercised jurisdiction under the Employment Act, 2007 (Section 49) and Articles 28, 41, 48 and 159(2)(d) of the Constitution as cited

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ngure v Huawei Technologies (Kenya) Co Ltd (Cause 335 of 2018) [2023] KEELRC 3204 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3204/eng@2023-12-05

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