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ELRCDismissedPetition No E138 of 2023· [2024] KEELRC 518 (KLR)

Muriithi v Autocheck Kenya Limited also t/a Cheki kenya Ltd (Petition E138 of 2023) [2024] KEELRC 518 (KLR)

Employment and Labour Relations Court
7 March 2024
3,456 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed a manager's claims for constructive dismissal and pregnancy discrimination, ruling her written acceptance of a new role defeated the claims.

What this practically means

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Executive summary

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The petitioner, employed as Country Manager from January 2021, sued the respondent claiming constructive dismissal and discrimination on account of her pregnancy and gender, plus monetary reliefs including unpaid house allowance, notice pay, compensation for unfair termination, ESOP shares, bonus, underpayment and damages. The respondent denied being her employer, asserting the contract was with Automarket Nigeria Limited, denied discrimination, and contended the transition to a new role was negotiated and that she resigned voluntarily. The court first held that the subsequent letter of offer dated 01.09.2021 between the petitioner and the respondent superseded the initial Automarket Nigeria Limited contract, so the respondent was her employer. On constructive dismissal, the court found the petitioner had expressly accepted, by email of 22.12.2022, the transition to Head of Strategic Partnerships and thereby condoned the change; no fundamental breach was established and the constructive dismissal and compensation claims failed. On discrimination, the court found the alleged offensive utterances by the line manager were made in a private visit during maternity leave when she was off official duty, so the employer could not be liable; the offer of her position to a man at higher pay was a bargain and not per se discriminatory; and no link to sex, gender or pregnancy was proved. On residual remedies, the court held the salary was consolidated pay inclusive of house allowance, notice pay fails on resignation, the ESOP claim lies against Vee8 International Holdings Ltd and not under the contract of service, and bonus, underpayment and damages claims lack basis. The petition was dismissed with each party bearing own costs, save that the respondent was ordered to issue the certificate of service within 7 days under section 51 of the Employment Act.

Key legal issues

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01

Identity of the employer

Holding

The respondent, not Automarket Nigeria Limited, was the petitioner's employer, because the letter of offer dated 01.09.2021 from the respondent superseded the initial contract.

Reasoning

The initial offer dated 09.01.2021 was with Automarket Nigeria Limited, but the petitioner exhibited a subsequent letter of offer dated 01.09.2021 between her and the respondent. The respondent also provided her payslips and its COO approved her clearance form. The initial contract was thereby overtaken and the respondent expressly became the employer.

p. 5
02

Unfair constructive dismissal

Holding

The resignation did not amount to constructive dismissal; the petitioner agreed to transition to the new role and thereby condoned the change.

Reasoning

By her email of 22.12.2022 following a meeting of 21.12.2022, the petitioner expressly accepted transition from Country Manager to Head of Strategic Partnerships. Having agreed to the change, she condoned it; even if the change would have been a fundamental breach, condonation defeats the constructive dismissal claim. No fundamental breach of contract was established.

p. 6
03

Discrimination on grounds of sex, gender or pregnancy

Holding

Discrimination was not established; the alleged offensive utterances were made in a private conversation and no contractual disadvantage was shown.

Reasoning

The line manager's visit occurred during maternity leave when the petitioner was released from official duty; the conversation was private and cannot be visited on the employer. The offer of her former position to a man at higher pay was a bargain, and the petitioner did not show that overruling of her opinions was on account of her sex, gender or pregnancy. No grievance was reported.

p. 7
04

Residual remedies

Holding

All monetary claims failed save for the certificate of service under section 51 of the Employment Act.

Reasoning

The salary was consolidated pay inclusive of house allowance; notice pay fails on resignation; the ESOP claim lies against Vee8 International Holdings Ltd and is not incorporated in the contract of service; bonus, underpayment and damages claims lack statutory or contractual basis. Only the certificate of service is due.

p. 7

Legal principles established

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  • A subsequent contract of employment supersedes an earlier contract and the party to the later contract becomes the employer.
  • An employee who expressly agrees to and condones a variation of the contract cannot later found a claim of constructive dismissal on that variation.
  • A consolidated salary stated as total cash compensation is inclusive of house allowance under section 31(2) of the Employment Act.

Court orders

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  1. 1.The respondent to deliver the certificate of service to the petitioner within 7 days per section 51 of the Employment Act
  2. 2.Each party to bear own costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticle 24
  • Employment Actsection 31(2)
  • Employment Actsection 51
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act; petition of unfair constructive dismissal and discrimination)

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, "Muriithi v Autocheck Kenya Limited also t/a Cheki kenya Ltd (Petition E138 of 2023) [2024] KEELRC 518 (KLR)", Case Analysis (2024). Petition No E138 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/518/eng@2024-03-07

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