Muga v Sbc Kenya Limited (Cause 346 of 2019) [2025] KEELRC 1391 (KLR)

The court held that although the employer had a contractual prerogative to transfer under clause 11, it had to be exercised reasonably. The Respondent transferred the claimant from Eastern Region to Nairobi without consultation, withdrew his vehicle, banned travel to the region he was to oversee, issued a warning and show cause without hearings, and then issued hasty demoting transfers to Magadi and Garissa within hours. Section 10(5) of the Employment Act required consultation and written notification of any change. The poor performance justification was unsubstantiated where the claimant had been barred from the region. These actions made continued employment intolerable, compelling the resignation.

Having found constructive and unfair dismissal, the court invoked section 49-type compensation. Considering the roughly three years of service and the contract's termination clause, 6 months' salary (Kshs 990,000/=) was deemed reasonable rather than the 12 months claimed. Because the Respondent had withheld one month's salary (Kshs 165,000/=) from terminal dues as notice pay, and the claimant proved unfair termination, that sum was payable to him. The Respondent's counterclaim for notice pay would have amounted to unjust enrichment and failed with the main claim.

Relying on Henry Ochido v NGO Co-ordination Board, the court accepted that it is not for the employee to dictate the station of work, but the employer must give sufficient and reasonable notice, facilitation, and hear the employee regarding the transfer, including extension of time or review of job requirements. Section 10(5) of the Employment Act obliges the employer, in consultation with the employee, to revise the contract to reflect changes and notify the employee in writing. Kenya County Government Workers Union v Wajir County Government confirmed the common law rule against unilateral variation is subsumed in fair labour practice principles.