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ELRCPartially AllowedMemorandum of Appeal dated 13th September 2024· [2025] KEELRC 2888 (KLR)

Security Group Africa (SGA) Kenya Limited v Mbaluka & 7 others (Employment and Labour Relations Cause E266 of 2024) [2025] KEELRC 2888 (KLR)

Employment and Labour Relations Court
24 October 2025
AJAbuodha Nelson Jorum
4,604 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that changing an employee's job or benefits without consulting them can amount to constructive dismissal, though NSSF-contributing employers owe no service pay.

What this practically means

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Executive summary

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This is a first appeal by the employer (Appellant) against the judgment of Hon. Rawlings Liluma Musiega, a magistrate, who found that eight long-serving inspectors were constructively dismissed and awarded them four months' salary as compensation for unfair termination, notice pay, service pay and unpaid leave. The appeal was disposed of by written submissions. The Appellant argued the Claimants themselves triggered the dispute by requesting withdrawal of fuel and motorcycle allowances, that reassignment to guard duties was a temporary operational decision, and that the Claimants absconded rather than resigned. The Respondents contended their motorcycle leases had lapsed, their grievances went unanswered, and the redeployment with withdrawal of riding suits and fuel cards was a demotion and repudiatory breach. The Court, exercising its duty to re-evaluate the evidence, condensed the seven grounds into two issues and agreed with the trial court: unilateral variation of employment terms without consultation, as confirmed by the Supreme Court in Gatuma v Kenya Breweries Ltd, amounted to constructive dismissal. On reliefs, the Court retained the four months' compensation and restored the one month's notice pay omitted from the trial computation, but overturned the award of unpaid leave (unpleaded) and the service pay award since the Appellant remitted NSSF contributions under section 35(6) of the Employment Act. The appeal partially succeeded and each party was ordered to bear their own costs of the appeal.

Key legal issues

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01

Whether the Respondents were constructively dismissed

Holding

Yes - the Appellant's withdrawal of riding suits and fuel cards and redeployment of the inspectors to guard duties without consultation was a repudiatory unilateral variation of terms amounting to constructive dismissal.

Reasoning

The inspector role could only be performed using motorcycles whose leases had lapsed. The Appellant demoted long-serving employees (up to 29 years) to guards without consultation, in response to their request for a meeting, and gave no timeline for reinstatement. The absence of a formal resignation does not cure the situation the employer created; failure to institute disciplinary proceedings for absconding undermines the abscondment claim.

p. 8
02

Whether the awards of damages, service pay and unpaid leave were justified

Holding

Partially - four months' compensation under section 49 was retained and notice pay restored, but unpaid leave was disallowed as unpleaded and service pay was disallowed as the Appellant remitted NSSF contributions.

Reasoning

The trial court was justified in awarding compensation under sections 49 and 49(4) given the long service, and the appellate court would not disturb its discretion. However, the trial court contradicted itself by awarding unpleaded leave days, and section 35(6) of the Employment Act exempts an employer who remits NSSF from paying service pay.

p. 9

Legal principles established

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  • A first appellate court must re-evaluate the evidence on both facts and law and reach its own conclusions.
  • Unilateral variation of employment contract terms without consultation may amount to repudiation and constructive dismissal.
  • An appellate court will not interfere with a trial court's exercise of discretion on damages absent misdirection or injustice.

Court orders

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  1. 1.Appeal partially succeeds: the four months' compensation for unfair termination is retained
  2. 2.One month's pay in lieu of notice is retained (having been omitted from the trial court's computation)
  3. 3.The award of unpaid leave for the last year is overturned and disallowed
  4. 4.The award of service pay is disallowed (Appellant remitted NSSF dues)
  5. 5.Each party to bear their own costs of the appeal
On appeal from
Magistrates' Court (employment cause)
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's employment judgment

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, "Security Group Africa (SGA) Kenya Limited v Mbaluka & 7 others (Employment and Labour Relations Cause E266 of 2024) [2025] KEELRC 2888 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 13th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2888/eng@2025-10-24

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