Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 238 of 2020· [2024] KEELRC 2785 (KLR)

Opande v Kenya National Union of Teachers (Cause 238 of 2020) [2024] KEELRC 2785 (KLR)

Employment and Labour Relations Court
14 November 2024
4,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that forcing an employee to quit her private association or lose her job was constructive dismissal, entitling her to compensation and costs.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent union from 16th May 2013 as an Executive Officer, claimed she was constructively dismissed after the Respondent's officials, hostile to the Kenya Women Teachers Association (KEWOTA) which she co-founded and served as Secretary, issued a circular of 29th April 2019 barring officials from forming or joining alternative associations and a letter of 14th May 2019 demanding she cease being a KEWOTA official and deregister by 18th May 2019 or automatically cease being an employee. She took voluntary early retirement on 19th May 2019, citing health reasons and pressure, and claimed terminal benefits of Kshs. 5,092,544 plus declarations of constructive and unfair dismissal. The Respondent admitted owing Kshs. 1,879,320.60 and asserted she retired voluntarily after being lawfully confronted over a conflict of interest. The court applied the contractual and unreasonable tests for constructive dismissal, distinguished the Jacinta W. Ndewgwa case (where the claimant was an official, not an employee), and found that the Respondent's ultimatum and circular repudiated the contract, infringing the Claimant's rights under Articles 3, 10, 38 and 41 of the Constitution. It declared her constructively dismissed on 18th May 2019, awarded six months' gross salary (Kshs. 1,401,828) as compensation for unfair dismissal and one month's notice pay (Kshs. 233,638), with costs and interest. Claims for special damages (ECD training allowances, holiday refunds, welfare refund, manual development fees and other terminal benefits) failed for want of specific proof.

Key legal issues

#
01

Whether the Claimant was constructively dismissed

Holding

Yes - the Respondent's ultimatum of 14th May 2019 and its circular of 29th April 2019 showed an intention not to be bound by the contract beyond 18th May 2019, amounting to constructive dismissal

Reasoning

The Respondent's circular required any official forming an alternative association to cease being an official automatically, and the letter of 14th May 2019 gave the Claimant an ultimatum to renounce KEWOTA by 18th May 2019. RW2 admitted she was out of office because the circular had taken effect. The court held this evidenced repudiation, infringing Articles 38 and 41 of the Constitution. The resignation letter of 19th May 2019 was of no effect; dismissal occurred on 18th May 2019.

p. 8
02

Whether the special damages heads (ECD training allowance, holiday refunds, welfare refund, manual development, terminal leave) were payable

Holding

No - they were not specifically proved

Reasoning

The heads claimed were in the character of special damages requiring specific proof. The Claimant's evidence was found scanty and incoherent and failed to displace the Respondent's evidence of payments made. The welfare refund claim also failed because the Welfare Scheme was an independent entity, a fact unchallenged.

p. 9
03

Compensation for unfair dismissal under Section 49(1)(c) of the Employment Act

Holding

Awarded at six months' gross salary (Kshs. 1,401,828)

Reasoning

The compensatory remedy is discretionary, its extent guided by the circumstances of each case. The court considered the Respondent's conduct amounting to constructive dismissal, its disregard of the Claimant's constitutional rights, and that she lost her job over her exercise of the right of association, justifying the maximum twelve months' jurisdiction but awarding six months.

p. 9
04

Notice pay

Holding

One month's salary in lieu of notice awarded, Kshs. 233,638

Reasoning

The Claimant's employment was terminable by twenty-eight days' notice under Section 35 of the Employment Act. No notice was issued in the circumstances, so pay in lieu was due; the claimed four months had no demonstrated contractual basis.

p. 9

Legal principles established

#
  • Where an employer infringes or threatens to infringe an employee's constitutional rights, the employee may walk out of employment and successfully sue for constructive dismissal.
  • Constructive dismissal is established where the employer's conduct evidences an intention no longer to be bound by the employment contract; the test is one of causation.

Court orders

#
  1. 1.A declaration that the Claimant was constructively dismissed from employment on 18th May 2019
  2. 2.Compensation for unfair dismissal, six months' gross salary, Kshs. 1,401,828
  3. 3.One month's salary in lieu of notice, Kshs. 233,638
  4. 4.Costs of the suit to the Claimant
  5. 5.Interest on the sums awarded at court rates from the date of judgment till full payment

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 3, 10, 19, 38, 41(1) and (2)
  • Employment ActSections 35, 49(1)(c)
  • Societies ActNot specified

Cases cited (5)

  • Stephen Michuki vs East Africa Express Limited and Another
    [2022] KEELRC 767 [KLR]
  • Porter vs N.B Legal Aid
    [2015] I.S.C.R.
  • Coca-Cola East and Central Africa Limited v Maria Ligaga
    [2015] eKLR
  • West Excavating [ECC] vs Sharp
    [1978] Q.B
  • Jacinta W. Ndewgwa versus Kenya National Union of Teachers
    Nairobi ELRC Cause No. 260 of 2020
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act, Articles 38 and 41 of the Constitution invoked)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Opande v Kenya National Union of Teachers (Cause 238 of 2020) [2024] KEELRC 2785 (KLR)", Case Analysis (2024). Cause No 238 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2785/eng@2024-11-14

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