Kabiro v Kartasi Products Limited (Cause E558 of 2024) [2025] KEELRC 2319 (KLR)
The bottom line
#A Kenyan court ruled that a smoke-free office is a legal duty, and ignoring complaints about a manager smoking amounted to constructive dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Yes - the Respondent's failure to ensure a smoke-free, safe and healthy working environment made continued employment intolerable, entitling the Claimant to resign with immediate effect
The Court found the Claimant's complaint about the Managing Director smoking in the workplace credible, drawing an adverse inference from the HR Manager's casual response to her WhatsApp message. Section 6(1) of the Occupational Safety and Health Act, sections 32, 33 and 35 of the Tobacco Control Act and the ILO 1998 Declaration (as amended in 2022) imposed duties on the employer. Following the South African case of Naude v Stealth Marine, the breach of these duties rendered employment intolerable. The absence of a formal grievance did not excuse the employer given the statutory duty.
Whether the Counterclaim for recruitment costs and salary in lieu of notice has merit
No - the counterclaim is disallowed because the Claimant was entitled to leave on the basis of an intolerable working environment
Having found constructive dismissal, the Court held the Claimant was entitled to leave the employment with or without notice. Consequently the claims for refund of Kshs 750,000 in recruitment costs and 1.25 days' salary in lieu of unserved notice could not stand.
What reliefs the Claimant is entitled to
Compensatory damages of four months' gross salary (Kshs 3,000,000) with interest, and a Certificate of Service; accrued leave, general damages and the counterclaim were declined
The Court awarded the equivalent of four months' salary taking into account the short length of employment (about 5 months) and the circumstances of termination. The leave claim failed because the Claimant willfully forfeited the accrued days in her resignation letter; the general damages claims were disallowed; a Certificate of Service was granted as the employment relationship was admitted.
Legal principles established
#- An employer's statutory duty to provide a safe and healthy, smoke-free working environment does not depend on a formal grievance being lodged; notification of a statutory violation obliges the employer to investigate and take remedial action.
- Failure to ensure a smoke-free, safe and healthy working environment can render continued employment intolerable and amount to constructive dismissal, entitling the employee to resign with or without notice.
Court orders
#- 1.The claim for constructive dismissal succeeds and the Claimant is awarded the sum of Kshs 3,000,000.00 being compensatory damages equivalent to four (4) months of her gross salary
- 2.Interest on the amount at Court rates from the date of Judgment until payment in full
- 3.The Counterclaim is disallowed
- 4.The Respondent shall bear the costs of the Claim and Counterclaim
- 5.The Respondent shall issue the Claimant with a Certificate of Service, within 30 days from the date of this judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabiro v Kartasi Products Limited (Cause E558 of 2024) [2025] KEELRC 2319 (KLR)", Case Analysis (2025). Cause No E558 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2319/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.