Kariamburi v Bins (Nairobi) Services Ltd (Cause E433 of 2021) [2024] KEELRC 1975 (KLR)
The bottom line
#A Kenyan court ruled that pushing an employee onto unpaid leave and replacing him was constructive dismissal, awarding over Ksh. 5 million.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment contract after expiry of the fixed term
The contract was renewed by conduct and became an indefinite term contract from 1st December 2014 to 12th October 2020; the Respondent's month-to-month theory has no legal basis
The initial three-year fixed term contract contemplated written renewal under clause 2.1, but although no written renewal was endorsed, the parties continued the relationship on the same terms, including the same gross salary. The Employment Act recognizes only fixed term, indefinite term, piece rate and casual contracts; there is no provision for month-to-month contracts. The renewed contract therefore ran on similar terms as the expired contract unless inconsistent with the Employment Act.
Constructive dismissal versus voluntary resignation
The Claimant was constructively dismissed; the Respondent's conduct amounted to a repudiatory breach that drove him to resign
The Respondent sent the Claimant on indefinite unpaid leave without indication of resumption, replaced him substantively with Mr. Aloo Muga, demanded return of work equipment while he was still employed, and discontinued his medical insurance and statutory remittances. When he resigned, the Respondent accepted without addressing his grievances. Viewed objectively, this conduct demonstrated an intention not to be bound by the contract, constituting repudiatory breach and constructive dismissal.
Unilateral salary reduction and unpaid leave
Both the 25% salary reduction and the unpaid leave were unilateral breaches entitling the Claimant to recover the withheld and shortfall amounts
Salary is a protected statutory right under Part IV of the Employment Act. The Respondent produced no minutes or resolutions of the purported management meeting, and even if a board decision existed, individual consultation and concurrence of the affected employee was required since contracts of service are individual. The schedule of employees on leave did not list the Claimant or show unpaid leave.
Compensation for unfair termination
Ten months' gross salary awarded under section 49(1)(c) as read with section 50 of the Employment Act
The court considered the section 49(4) factors: the parties had an approximately eight-year relationship, the Claimant's conduct did not contribute to the termination, and the Respondent's own witness vouched for his exemplary conduct. Compensation equivalent to ten months' gross salary (Ksh. 2,902,500.00) was appropriate.
Legal principles established
#- Where parties continue an employment relationship after expiry of a fixed term contract without written renewal, they renew it by conduct, resulting in an indefinite term contract
- Unpaid leave has no statutory foundation and cannot be unilaterally imposed by an employer; it requires consultation and concurrence of the employee
- Employment contracts are individual, not communal; an employer cannot vary individual contracts through a collective management decision without individual consent
- Where an employer waives the notice period on acceptance of a resignation, it becomes obligated to pay salary in lieu of notice
Court orders
#- 1.Declaration that the parties had an indefinite term contract of service from 1st December 2014 until 12th October 2020
- 2.Declaration that the Respondent unfairly terminated the contract of service through constructive dismissal of the Claimant
- 3.Award of Ksh. 1,567,350.00 being salary for the period between 1st May 2020 and 12th October 2020
- 4.Award of Ksh. 66,389.00 being underpayment of salary for April 2020
- 5.Award of Ksh. 2,902,500.00 being compensation for unfair termination equivalent to ten months' gross salary
- 6.Award of Ksh. 580,500.00 as pay in lieu of notice
- 7.The award is subject to applicable statutory deductions under section 49(2) of the Employment Act
- 8.Interest on the sums awarded at court rates from the date of the decision
- 9.The Respondent to issue the Claimant with a Certificate of Service under section 51 of the Employment Act
- 10.The Claimant to return to the Respondent the bank token, office keys and one laptop computer
- 11.The Respondent to permit the Claimant to collect his personal belongings from its premises
- 12.The Claimant awarded costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (ELRC Procedure Rules referenced)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kisenga v Ongair Limited (Cause E1090 of 2024) [2025] KEELRC 3004 (KLR)[2025] KEELRC 3004 (KLR)30 Oct 2025
- Wanjeri v Jacaranda Nairobi Hotel (Cause E359 of 2022) [2025] KEELRC 378 (KLR)[2025] KEELRC 378 (KLR)14 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Kariamburi v Bins (Nairobi) Services Ltd (Cause E433 of 2021) [2024] KEELRC 1975 (KLR)", Case Analysis (2024). Cause No E433 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1975/eng@2024-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.