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ELRCDismissedCause No E206 of 2023· [2024] KEELRC 1786 (KLR)

Kiarago v Mathews t/a Matbronze Wildlife Art (Cause E206 of 2023) [2024] KEELRC 1786 (KLR)

Employment and Labour Relations Court
10 July 2024
6,145 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1st September 2012 and earning Kshs.128,000/= per month as a Front Office Administrator responsible for shipping and delivery of bronze artifacts to international clients, sued for constructive dismissal. She alleged that a notice to show cause, suspension, an arrest at her workplace by plain-clothes officers and a sham disciplinary process created intolerable conditions forcing her resignation on 5th December 2022. She sought 12 months' compensation, one month's salary in lieu of notice, general damages for constitutional violations, punitive and aggravated damages, costs and interest. The Respondent denied fabricating allegations, attributed the arrest to the police acting independently, asserted a fair disciplinary process, and counter-claimed Kshs.3,888,202.81 for four lost artifacts. The court framed two issues: whether the Claimant was constructively dismissed and her entitlement to reliefs. Applying Western Excavating v Sharp and Coca Cola v Ligaga, it held the employee bears the burden of proving a repudiatory breach of a fundamental term. It found the allegations not fabricated, the disciplinary process attended without complaint (amounting to acquiescence and waiver), and the police not under the Respondent's control. The court found no proof of humiliation, manhandling or constitutional violation and no basis for exemplary damages under Rookes v Barnard. All prayers were disallowed and the Claimant's case was dismissed with no orders as to costs. Notably, the judgment does not expressly determine the Respondent's counter-claim.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

Not proved; the Claimant failed to establish a repudiatory breach going to the root of the contract

Reasoning

Applying Western Excavating v Sharp and Coca Cola v Ligaga, the employee bears the burden of proving a fundamental breach. The court found the allegations in the show-cause notice were not fabricated, the disciplinary process was attended without complaint, and the arrest was by police acting independently. Participation in the disciplinary process amounted to acquiescence/waiver. Resignation was to evade the outcome of the process.

p. 11
02

Whether the Respondent's report to the police and the Claimant's arrest amounted to intolerable conduct attributable to the employer

Holding

No; the police acted independently under their own law

Reasoning

The court held that RWI only lodged a complaint and transported officers to the compound; the officers were governed by the Criminal Procedure Code and National Police Service Act and not under his control. No evidence of manhandling was adduced, and the Claimant's account was over-dramatized.

p. 10
03

Whether the Claimant proved humiliation and embarrassment entitling her to general, punitive and aggravated damages

Holding

No evidence established the alleged humiliation or any violation of constitutional rights

Reasoning

The particulars of humiliation in the claim did not even mention the arrest; no witnesses were called; the constitutional provisions allegedly violated were never identified; and no basis for exemplary damages under Rookes v Barnard and Obonyo was demonstrated.

p. 10
04

Entitlement to the reliefs sought

Holding

All prayers disallowed as the foundational claim failed

Reasoning

Having found no constructive dismissal, no unfair termination, no proved constitutional violation and no proved humiliation, all four monetary prayers failed. The judgment does not expressly determine the Respondent's counter-claim for Kshs. 3,888,202.81.

p. 12

Legal principles established

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  • The test for constructive dismissal is the contractual test: the employee must prove a repudiatory breach of a fundamental term of the contract, judged objectively, with the burden on the employee
  • The National Police Service does not take instructions from civilians; an employer who reports a suspected crime to police is not responsible for the police's subsequent conduct
  • Exemplary or punitive damages may only be awarded in the two categories in Rookes v Barnard, and the plaintiff must prove conduct deserving of punishment

Court orders

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  1. 1.The Claimant's case against the Respondent is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSections 45, 41, 47(5)
  • Evidence ActSections 107, 108, 109
  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Criminal Procedure CodeNot specified
  • National Police Service ActNot specified

Cases cited (18)

  • Nickson Musonye V Minolta Ltd
    (2023) eKLR
  • Coca Cola East and Central Africa Ltd V Maria Kagai Ligaga
    (2015) eKLR
  • Anthony Yamo Ihito V Basco Products (Kenya) Ltd
    (2022) eKLR
  • Benjamin Langwen V National Environment Management Authority
    (2016) eKLR
  • Douglas Odhiambo Apel & another V Telkom Kenya Ltd & 2 others
    (2006) eKLR
  • Roy Hauliers Ltd V Njora
    (2023) KEELRC 2H2 (KLR)
  • Western Excavating (ECC) Ltd V Sharp
    (1978) Q.B 761
  • Penderson V Camden London Borough Council
    (1981) ICR 674
  • Walker V Josiah Wedgwood & Sons Ltd
    (1978) IRLR
  • Mbuthia Macharia V Annah Mutua & another
    (2017) eKLR
  • Netah Njoki Kamau & another V Eliud Mburu Mwaniki
    (2021) eKLR
  • Mary Wambui Kaboguo V Kenya Bus Services Ltd
    (1997) eKLR
  • Miller V Minister of Pension
    (1947) ALL ER 373
  • Charterhouse Bank Ltd under Statutory Management V Frank N. Kamau
    (2016) eKLR
  • Rookes V Barnard & others
    (1964) AC 1129
  • Obonyo V Municipal Council of Kisumu
    (1971) EA 91
  • Godfrey Julius Ndumba Mbogori & another V Nairobi City County
    (2018) eKLR
  • Grinyamwaya V Nairobi City Commission
    (1985) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes ( Employment Act, 2007; Employment and Labour Relations Court Act); not expressly cited in the judgment

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, "Kiarago v Mathews t/a Matbronze Wildlife Art (Cause E206 of 2023) [2024] KEELRC 1786 (KLR)", Case Analysis (2024). Cause No E206 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1786/eng@2024-07-10

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