Muriithi v Autocheck Kenya Limited also t/a Cheki kenya Ltd (Petition E138 of 2023) [2024] KEELRC 518 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Identity of the employer
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Nigeria Limited, was the petitioner's employer, because the letter of offer dated 01.09.2021 from the respondent superseded the initial contract.
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.
Unfair constructive dismissal
The resignation did not amount to constructive dismissal; the petitioner agreed to transition to the new role and thereby condoned the change.
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.
Discrimination on grounds of sex, gender or pregnancy
Discrimination was not established; the alleged offensive utterances were made in a private conversation and no contractual disadvantage was shown.
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.
Residual remedies
All monetary claims failed save for the certificate of service under section 51 of the Employment Act.
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.
Legal principles established
#- 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
#- 1.The respondent to deliver the certificate of service to the petitioner within 7 days per section 51 of the Employment Act
- 2.Each party to bear own costs of the petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.