DPL Festive Limited v Okuny (Appeal E070 of 2024) [2025] KEELRC 2122 (KLR)
The bottom line
#Kenya's Employment Court in Kisumu threw out most of a worker's claims because he resigned voluntarily and sued too late.
What this practically means
#Executive summary
#Key legal issues
#Constructive dismissal
Respondent failed to prove constructive dismissal; trial court's finding was correct.
The employee must prove a repudiatory breach going to the root of the contract and must not acquiesce or delay. The alleged breaches (unpaid salary, delayed salary, non-compensation under WIBA) did not go to the root of the contract, and the respondent took inordinately long to resign, citing no frustration in his handwritten resignation letter.
Award of salary in lieu of notice
The trial court's award of one month's salary as a 'start up' was a misdirection since the respondent resigned voluntarily with notice.
Having found no constructive dismissal, the only meritorious reliefs were accrued rights. Salary in lieu of notice on termination is not payable where an employee voluntarily resigns giving the requisite one month's notice.
Limitation of actions
The claim for salary for August 2018 was statute-barred under Section 89 of the Employment Act and the award ought not to have been made.
The cause of action arose at the end of August 2018; the suit filed in April 2023 was about 4 years 7 months later, exceeding the three-year limitation period. The denial appeared to be a one-off with salary continuing thereafter, so no continuing injury applied.
Underpayment claim
The underpayment claim was unsubstantiated, though the court agreed with the trial court's rejection of it for different reasons.
The respondent had no evidence that he was an oven man or machine operator beyond the contract designation as bakery worker. The appellant's evidence that salary scales followed the Operational CBA was uncontroverted.
First appeal - duty of the court
On a first appeal the court re-evaluates the evidence afresh and draws its own conclusions, making allowance for not having seen or heard the witnesses.
The court invoked the settled principles in Gitobu Imanyara, Selle v Associated Motor Boat Co and related authorities to justify re-evaluating the trial evidence and reaching its own conclusions.
Legal principles established
#- An employee alleging constructive dismissal bears the burden of proving a repudiatory breach of the contract of employment going to the root of the contract.
- An employee cannot claim constructive dismissal if he acquiesces to the employer's conduct or takes unreasonably long to resign.
- Claims based on the Employment Act or a contract of service must be instituted within three years under Section 89 of the Employment Act.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the trial court set aside in its entirety
- 3.In its place, order dismissing the respondent's case in the trial court save for the award of certificate of service, which is a statutory imperative
- 4.Each party to bear own costs of the appeal
- On appeal from
- Senior Resident Magistrate's Court at Kisumu (MCELRC)
- Kisumu MCELRC No. E067 of 2023
- Jurisdiction invoked
- First appeal from the trial magistrate's judgment in Kisumu MCELRC No. E067 of 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DPL Festive Limited v Okuny (Appeal E070 of 2024) [2025] KEELRC 2122 (KLR)", Case Analysis (2025). Kisumu MCELRC Appeal (from Kisumu MCELRC No. E067 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2122/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.