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ELRCDismissedNairobi ELRC Appeal arising from Nairobi CMEL No. 858 of 2020· [2025] KEELRC 623 (KLR)

Chege v Africa Star Railway Operations Company Ltd (Employment and Labour Relations Appeal E087 of 2023) [2025] KEELRC 623 (KLR)

Employment and Labour Relations Court
28 February 2025
3,438 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a worker's constructive dismissal appeal, holding he voluntarily signed a COVID-era contract that reduced his pay.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi from the judgment of S.A Opande (PM) delivered on 12th May 2023 in Nairobi CMEL No. 858 of 2020, which dismissed the claimant's employment claim with costs. The appellant, employed on a three-year contract from 15th September 2018, challenged a new contract issued on 22nd May 2020 during the COVID-19 pandemic that varied his terms and reduced his salary, arguing the variation was unilateral and in breach of clause 14 requiring written agreement, and that his subsequent resignation amounted to constructive dismissal. He sought terminal benefits of Kshs. 1,080,256/=, general damages for harassment and intimidation, costs and interest. The ELRC, presided over by J.W. Keli, J, framed two issues: whether the trial court erred in finding no constructive dismissal, and whether it erred in failing to grant the reliefs. Applying Selle v Associated Motor Boat Co and Mbogo v Shah, the court re-evaluated the evidence and found the appellant signed the optional contract voluntarily; that the employer, instead of invoking unpaid leave or redundancy under the force majeure clause, continued paying the reduced salary - the more advantageous option; and that the claim of discriminatory recall was unchallenged. Adopting the contractual test in Coca-Cola East & Central Africa v Maria Kagai Lugaga, the court found no repudiatory breach and no proved constructive dismissal. The salary difference claim failed on clause 20(5), which barred compensation of remuneration differences after force majeure. The appeal was dismissed, the trial judgment and decree upheld, and the court, to temper justice with mercy, made no order as to costs in the appeal.

Key legal issues

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01

Whether the trial court erred in finding there was no constructive dismissal

Holding

No error; the appellant did not prove constructive dismissal

Reasoning

The court re-evaluated the evidence under Selle v Associated Motor Boat Co and Mbogo v Shah. The appellant signed the new contract voluntarily and knew it was optional. Under clause 20 of the new contract, the employer could either place the employee on unpaid leave after the third month or end employment via redundancy procedures; instead the respondent continued paying the reduced third-month salary, the more advantageous option for the employee. The claim of discriminatory recall was unchallenged by specific reply. Applying the contractual test from Coca-Cola v Lugaga, no repudiatory breach was established and no causal link justified the resignation.

p. 6
02

Whether the trial court erred in failing to grant the reliefs claimed

Holding

No error; all reliefs were properly disallowed

Reasoning

Having upheld the finding of no constructive dismissal, the only outstanding issue was the salary difference claim. Clause 20(5) of the contract of 20th May 2020 expressly provided that remuneration differences arising during force majeure would not be compensated when business resumed. The appellant voluntarily bound himself to this clause. The court therefore upheld the trial court's disallowance of all reliefs, including terminal benefits and general damages.

p. 7

Legal principles established

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  • On first appeal, the appellate court reconsiders and re-evaluates the evidence and draws its own conclusions, while making allowance for having neither seen nor heard the witnesses
  • An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong - misdirection, acting on wrong matters, or failure to consider relevant matters
  • Constructive dismissal is determined by the contractual test - the employer's conduct must amount to a repudiatory breach of the contract of employment, proved objectively, with a causal link to the resignation, and the burden of proof lies on the employee

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The Judgment and Decree of the Honourable S.A Opande (PM) delivered at Nairobi on the 12th May, 2023 in Nairobi CMEL No. E858 of 2020 is upheld
  3. 3.No order as to costs in the appeal

Authorities

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Cases cited (12)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA
  • Kenya Union of Commercial, Food and Allied Workers v Tusker Mattresses Limited
    (2020) eKLR
  • Bakery Confectionary Food and Manufacturing And Allied Workers Union (K) v Kenafric Industries Limited
    (2021) eKLR
  • Coca-Cola East & Central Africa v Maria Kagai Lugaga
    (2015) eKLR
  • Western Excavating (ECC) Ltd -v- Sharp
    [1978] ICR 222
  • Pedersen -v- Camden London Borough Council
    [1981] ICR 674
  • Office -v- Roberts
    (1980) IRLR 347
  • Jones -v- F. Sirl & Son (Furnishers) Ltd.
    [1997] IRLR 493
  • Walker -v- Josiah Wedgwood & Sons Ltd.
    [1978] IRLR 105
  • Wooder -v- Wimpey
    [1980] 1 WLR 277
  • Malik and Mahmud -v- Bank of Credit and Commerce International
    [1998] AC 20
On appeal from
Chief Magistrate's Court, Nairobi (Employment and Labour Relations)
Nairobi CMEL No. 858 of 2020
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's court (Employment and Labour Relations Court Act framework; appeal from Nairobi CMEL No. 858 of 2020)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chege v Africa Star Railway Operations Company Ltd (Employment and Labour Relations Appeal E087 of 2023) [2025] KEELRC 623 (KLR)", Case Analysis (2025). Nairobi ELRC Appeal arising from Nairobi CMEL No. 858 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/623/eng@2025-02-28

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