Mwinyihaji v David Livingstone Limited t/a Mara River Lodge & another (Cause E006 of 2022) [2024] KEELRC 2238 (KLR)
The bottom line
#Kenya's Employment Court ruled that sending an employee on indefinite unpaid leave without recall is constructive dismissal, awarding the worker over Kshs 1.3 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was constructively dismissed
The claimant was constructively dismissed when he was sent on compulsory unpaid leave and never recalled to work.
The uncontested evidence was that the claimant was told not to resume duty on 1st March 2020 after leave, and was never recalled or allocated duties. He was neither declared redundant under Section 40 nor terminated under Sections 35, 41, 43, 45 and 47 of the Employment Act. The prolonged disengagement without communication amounted to constructive dismissal without due process.
Whether the employment contract was frustrated by Covid-19
The frustration argument fails; the employer did not avail records to prove business losses and could have declared redundancy under Section 40 instead.
The 1st respondent pleaded that Covid-19 and flooding frustrated the contract and destroyed records, but produced no audited accounts or police report to substantiate the losses or destruction of records. The court held that even if the employer wished to end the employment, Section 40 redundancy was the lawful option available, and failing that the dismissal was without due process.
Whether the counter-claim was proved
The counter-claim failed; there was no evidence the money was ever paid to the claimant and no demand was made before the suit.
The evidence showed the counterclaimed sums related to unpaid guest bills (debts) rather than monies received by the claimant. As a legal entity, the 1st respondent could pursue the debtors directly, and by sending the claimant on compulsory leave it denied him the opportunity to follow the debts. No demand was made before the suit, showing the counter-claim was an afterthought.
Whether the 2nd respondent was properly joined
Misjoinder does not defeat a cause; however judgment was entered against the 1st respondent alone as the 2nd respondent was not the employer.
The court held that misjoinder or non-joinder does not render a cause incompetent, citing Order XX of the Civil Procedure Act & Rules, and that remedies would be tailored per party. On the evidence, the 2nd respondent only conveyed the employer's message and was not the employer, so liability attached to the 1st respondent only.
Legal principles established
#- Sending an employee on indeterminate unpaid leave without recall amounts to constructive dismissal.
- Misjoinder or non-joinder of a party does not render a cause incompetent.
Court orders
#- 1.A declaration that the claimant was unfairly and unlawfully constructively dismissed by the 1st respondent on or around 1st March, 2020
- 2.Award of Kshs 100,000/= being one month's salary in lieu of notice
- 3.Award of Kshs 100,000/= being salary arrears for February, 2020
- 4.Award of Kshs 1,200,000/= as compensation for unfair and unlawful constructive dismissal, less Kshs 65,000/= already paid, leaving a balance of Kshs 1,335,000/= payable and not subject to statutory deductions
- 5.The 1st respondent to issue and deliver a certificate of service to the claimant within 30 days of the judgment
- 6.The claimant awarded the costs of the cause and of the dismissed counter-claim, against the 1st respondent
- 7.The counter-claim is dismissed
- 8.Judgment entered against the 1st respondent alone
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (court identified as Employment and Labour Relations Court, Nakuru; specific provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muga v Sbc Kenya Limited (Cause 346 of 2019) [2025] KEELRC 1391 (KLR)[2025] KEELRC 1391 (KLR)9 May 2025
Cite this brief
#Cite this brief
Caselaw, "Mwinyihaji v David Livingstone Limited t/a Mara River Lodge & another (Cause E006 of 2022) [2024] KEELRC 2238 (KLR)", Case Analysis (2024). Cause No E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2238/eng@2024-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.