Kiarago v Mathews t/a Matbronze Wildlife Art (Cause E206 of 2023) [2024] KEELRC 1786 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Not proved; the Claimant failed to establish a repudiatory breach going to the root of the contract
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.
Whether the Respondent's report to the police and the Claimant's arrest amounted to intolerable conduct attributable to the employer
No; the police acted independently under their own law
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.
Whether the Claimant proved humiliation and embarrassment entitling her to general, punitive and aggravated damages
No evidence established the alleged humiliation or any violation of constitutional rights
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.
Entitlement to the reliefs sought
All prayers disallowed as the foundational claim failed
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.
Legal principles established
#- 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
#- 1.The Claimant's case against the Respondent is dismissed
- 2.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.