Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedAppeal No E037 of 2024· [2025] KEELRC 44 (KLR)

Brinks Security Services Limited v Chahasi (Appeal E037 of 2024) [2025] KEELRC 44 (KLR)

Employment and Labour Relations Court (first appeal from subordinate court)
23 January 2025
JGJACOB GAKERI
2,899 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cut a bank employee's unfair termination award because he couldn't prove constructive dismissal, but the employer also failed to prove he deserted his job.

What this practically means

#

Executive summary

#
This is a first appeal to the Employment and Labour Relations Court at Kisumu, decided by Dr. Jacob Gakeri J on 23rd January 2025, against the judgment of the Chief Magistrate's Court (Hon. Douglas Ogoti) delivered on 12th July 2024, which had found the Respondent constructively dismissed and awarded all reliefs sought in a memorandum of claim dated 10th January 2023. The Respondent, employed from July 2015 on a salary that rose from Kshs.9,800 to Kshs.13,200, claimed he was constructively dismissed in September or October 2022 when duties were not assigned. The Appellant's case was that he was found asleep on duty on the night of 15th September 2022, failed to sign the Occurrence Book, refused to record a statement, surrendered his uniform and left, as captured in the supervisor's unsolicited email of 16th September 2022. Guided by the retrial principles in Selle v Associated Motor Boat Co. and Okeno v Republic, the Court held the trial Magistrate failed to interrogate the evidence; the Respondent, bound by his pleadings, gave no specific dates, never alleged he resigned, and adduced no evidence of reporting after 16th September 2022. Applying the contractual test in Coca Cola v Ligaga (adopting Western Excavating v Sharp), the Court found constructive dismissal unproved, though the Appellant also failed to prove desertion or fair termination. On reliefs, the Court re-assessed each head, disallowing overtime, rest days and gratuity for lack of evidence or contractual basis, and affirming underpayment, house allowance, leave allowance, notice pay and 3 months' compensation under Section 49(1) of the Employment Act. The total payable was fixed at Kshs.273,444.53, with actual leave travelling allowance to be computed. The appeal partially succeeded; each party bore its own costs.

Key legal issues

#
01

Whether the Respondent was constructively dismissed

Holding

The claim of constructive dismissal was not proved; the Respondent did not resign or leave in response to non-assignment of duties and did not prove a repudiatory breach

Reasoning

The Respondent pleaded constructive dismissal based on non-assignment of duties in September/October 2022 but gave no specific dates, did not allege or testify that he resigned or left on any day, and admitted the 15th/16th September 2022 encounter with the supervisor. The Court found the supervisor's unsolicited email of 16th September 2022 more credible, suggesting the Respondent absconded. Without evidence of resignation in response to hostile conditions, there was no evidential basis for constructive dismissal.

p. 5
02

Whether the trial Magistrate properly evaluated the evidence

Holding

The trial court erred in law and fact by failing to interrogate all the evidence adduced by the Appellant

Reasoning

Applying the retrial principle in Selle v Associated Motor Boat Co., the Court found the trial Magistrate did not subject the evidence - particularly the supervisor's email of 16th September 2022 - to the required in-depth interrogation, and made no analysis of the elements of constructive dismissal before finding dismissal.

p. 4
03

Desertion by the employee

Holding

Even if the Respondent deserted, the employer bore the burden of proving reasonable steps to have him resume duty or face disciplinary process, which the Appellant did not discharge

Reasoning

The Court noted the email suggested the Respondent absconded, but the Appellant tendered no evidence of desertion or of fair termination. Citing Felistas Acheha Ikatwa and Judith Atieno Owuor, the Court restated the employer's evidential burden when alleging desertion.

p. 5
04

Reliefs

Holding

The trial court erred in allowing all reliefs without separate interrogation; overtime, rest days and gratuity were wrongly awarded while underpayment, house allowance, leave allowance, notice pay and 3 months' compensation were justified

Reasoning

The Court assessed each relief: underpayment of Kshs.131,110.20 against the Regulation of Wages (General) Amendment Order 2022; house allowance under Section 31 of the Employment Act; leave allowance for 3 years; one month's pay in lieu of notice; and compensation of 3 months' salary under Section 49(1) of the Employment Act, factoring in the 7-year service and the Respondent's contribution to the separation.

p. 5

Legal principles established

#
  • A first appellate court must reconsider and evaluate the evidence itself, making due allowance for not having seen or heard the witnesses
  • Parties are bound by their pleadings, subject to limited exceptions where an issue arising in the proceedings is fully canvassed
  • Constructive dismissal in Kenya follows the contractual test requiring proof of a repudiatory breach by the employer
  • An employer alleging desertion must prove reasonable steps taken to have the employee resume duty or subject him to a disciplinary process

Court orders

#
  1. 1.The judgment of the trial Court is interfered with to the extent that the total amount payable to the Respondent for unfair termination of employment is Kshs.273,444.53
  2. 2.The Appellant shall compute and pay the actual leave travelling allowance due to the Respondent based on his salary of Kshs.15,141.95
  3. 3.The other reliefs awarded by the trial Court are affirmed
  4. 4.Each party shall bear own costs of the appeal

Authorities

#

Legislation

  • Employment ActSection 31
  • Employment ActSection 49(1)
  • Regulation of Wages (General) Amendment Order 2022not specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (17)

  • Daniel Otieno Migore V South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Coca Cola East & Central Africa Ltd V Maria Kagai Ligaga
    [2015] eKLR
  • Herbert Wafula Waswa V Kenya Wildlife Services
    [2020] eKLR
  • Moses Kimanzi Katii V H. Young & Co. (EA) Ltd
    [2018] eKLR
  • Kennedy Wakoto V Secretary Board of Management Chebukwa Secondary School
    [2021] eKLR
  • Irungu Githae V Mutheka Farmers Co-operative Society Ltd
    [2019] eKLR
  • Charity Wambui Muriuki V M/s Total Security Surveillance Ltd
    [2017] eKLR
  • Wells Fargo Ltd V Julius Ihomba Gatete
    [2018] eKLR
  • Selle & Another V Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Okeno V Republic
    [1972] EA 32
  • Ganpat V State of Haryana
    [2010] 12 SCC 59
  • National Land Commission V Munubi & 4 Others
    [2022] KECA 391(KLR)
  • Odd Jobs vs Mubea
    (1970) E A 476
  • Western Excavating (ECC) Ltd V Sharp
    [1978] Q.B 761
  • Godfrey Allan Tolo V O. Otieno & Another
    [2022] eKLR
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    [2018] eKLR
  • Judith Atieno Owuor V Sameer Agriculture and Livestock Ltd
    [2020] eKLR
On appeal from
Chief Magistrate's Court (Hon. Douglas Ogoti)
memorandum of claim dated 10th January, 2023
Jurisdiction invoked
First appeal from the Chief Magistrate's Court (no specific provision cited in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Brinks Security Services Limited v Chahasi (Appeal E037 of 2024) [2025] KEELRC 44 (KLR)", Case Analysis (2025). Appeal No E037 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/44/eng@2025-01-23

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