Obiero v Office of the Director of Public Prosecutions (Petition E024 of 2023) [2025] KEELRC 1165 (KLR)

The Court applied the test in Coca Cola East & Central Africa Ltd v. Maria Kagai Ligaga: repudiatory breach going to the root of the contract, or conduct so unreasonable the employee cannot be expected to stay. The facts mirrored Ligaga - haphazard transfers forcing family relocation, advice that there was no role at Nakuru, depletion of savings, and eventual resignation. The resignation was therefore a constructive dismissal.

The Petitioner performed the same prosecutorial role as colleagues Mongare, Abwajo, Ratemo and Bartilol who were paid allowances. Relying on Ol Pejeta Ranching Ltd v. David Wanjau Muhoro, Section 5(5) of the Employment Act and ILO Convention No. 100, the Court held that unequal remuneration for work of equal value is discriminatory and an unfair labour practice, anchored in Article 41(2)(a) and (b).

The Respondent as a public office is bound by transparency, accountability and equal opportunity values under Article 232. Advising the Petitioner that his transfer to Nakuru - which compelled family relocation - was inadvertent, delaying induction until after resignation, and irregular transfers were not responsible administrative acts and breached Articles 27, 41 and 47.

While courts will not ordinarily interfere with an employer's transfer prerogative, interference is warranted where the exercise is inhumane, actuated by malice or bad faith, or unreasonable. The erratic sequence of transfers - Kabarnet, Nakuru, back to Kabarnet, then Elgeyo Marakwet - with costly family relocations, fell into that category.

Constructive dismissal is a common law concept, not a creature of statute, distinct from unfair termination. The statutory standards for fair termination under Sections 41, 43 and 45 of the Employment Act are inapplicable, so the 12-month cap is a guide only. The Court awarded Kshs. 750,000 for constructive dismissal and a further Kshs. 750,000 for constitutional violations.