Mini Bakeries (Nairobi) Ltd v Okindo (Appeal E028 of 2023) [2024] KEELRC 507 (KLR)
The bottom line
#A Kenyan court upheld an employee's constructive dismissal claim over unpaid wages, but struck out severance pay awarded without proof of redundancy.
What this practically means
#Executive summary
#Key legal issues
#Constructive dismissal
Constructive dismissal was proved; the magistrate's factual errors (transfer letter) did not overturn the finding, as the employer breached the CBA on transfer notice, transport and disturbance allowance and failed to pay two months' wages
The Respondent had signed a transfer form acknowledging transfer to Migori, so the finding there was no transfer letter was erroneous. However, the employer failed to pay October and November 2020 wages by the statutory due dates under section 18 of the Employment Act, and produced no proof it complied with CBA clause 30 requiring 30 days' notice, free transport and a disturbance allowance. The cumulative effect was frustration justifying constructive dismissal.
Compensation for wrongful termination
The award of 6 months' wages was not disturbed despite the magistrate's failure to state which section 49(4) factors she considered
The court held the failure to state the section 49(4) factors considered was an error of law, but given the Respondent's service of about five years (2015-2020), the award was proportionate and left undisturbed.
Severance pay
The award of Kshs 482,032/- severance pay was set aside because redundancy was neither pleaded nor proved
Severance pay is a statutory entitlement or remedy in redundancy under section 40 of the Employment Act. The dispute was not pleaded as redundancy and no such finding was made, nor was any legal or contractual foundation laid for the claim.
Counterclaim based on desertion
The counterclaim was rightly dismissed; the employer failed to prove desertion
Desertion requires proof that the employee had no intention of returning to work and that the employer accepted the repudiation. The employer, which had not paid two months' wages and had not facilitated the transfer, failed to discharge this burden of proof.
Legal principles established
#- On a first appeal, the court must reconsider and evaluate the evidence itself while making due allowance for not having seen or heard the witnesses
- Constructive dismissal is established where the employer's conduct is so unreasonable the employee cannot be expected to stay, or so grave it constitutes a repudiatory breach
- An employer alleging desertion must prove the employee had no intention of returning to work and that it accepted the repudiation
- Severance pay under section 40 of the Employment Act is an entitlement or remedy only in cases of redundancy
Court orders
#- 1.The Appeal succeeds only to the extent that the award of severance pay is set aside
- 2.Each party to bear own costs of the Appeal
- On appeal from
- Principal Magistrate's Court
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Principal Magistrate's Court (Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mini Bakeries (Nairobi) Ltd v Okindo (Appeal E028 of 2023) [2024] KEELRC 507 (KLR)", Case Analysis (2024). Memorandum of Appeal lodged 18 May 2023 (Record of Appeal, ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/507/eng@2024-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.