Hightech Cylinder Manufacturing Co. Limited v Wamukota (Appeal E012 of 2023) [2025] KEELRC 3705 (KLR)
The bottom line
#A Kenyan employer lost its appeal after unilaterally cutting a worker's salary; the court held this was constructive dismissal and awarded full terminal dues.
What this practically means
#Executive summary
#Key legal issues
#Whether an employer-employee relationship existed
The trial court's finding that the Respondent was a contractual employee was upheld; casuals are employees and continuous engagement converts them to term contracts under section 37 of the Employment Act
The court noted that by definition a casual worker under section 2 of the Employment Act is still an employee. The Respondent worked from February 2018 to March 2021, held an Employee ID Card issued by the Appellant's accountant, and DW1 testified to meetings with employees and permission to seek other work. The totality of evidence supported the trial court's finding of a contractual employment relationship.
Whether the Respondent was unlawfully and unfairly terminated
The unilateral proposal of a Kshs. 2,000 salary reduction, rejected by the employee, amounted to repudiation and constructive dismissal; the unfair termination finding was upheld
The court found it undisputed that the exit arose from the employer's proposal to cut the salary by Kshs. 2,000, which the Respondent rejected. Applying the Court of Appeal's test in Coca Cola v Ligaga, the unilateral reduction was a repudiatory breach. The employer should instead have declared redundancy; failing that, the procedure was also unlawful.
Whether the terminal dues awards (notice pay, 5 months' compensation, house allowance) were erroneous
All three awards were upheld as flowing from the upheld findings of unfair termination and contractual employment
Having upheld the finding of unfair termination, notice pay under section 35 was upheld. The 5 months' compensation was reasonable given the 2018-2021 service period and section 49(4) factors, per Mbogo v Shah. The housing award followed from the finding that the claimant was a contractual employee converted under the Act, since section 31 makes housing a basic condition of service.
Legal principles established
#- A first appellate court must revisit the evidence on record, evaluate it and reach its own conclusion
- Under section 37 of the Employment Act a casual employee engaged for the equivalent of one month or more is converted to a monthly term contract entitled to statutory terms
- Unilateral reduction of an employee's salary amounts to repudiation of the employment contract and constitutes constructive dismissal
- Where an employer cannot pay salaries, the lawful course is a declaration of redundancy, and failing to follow it renders the termination procedurally unlawful
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to be paid to the Respondent by the Appellant
- On appeal from
- Principal Magistrate's Court at Mavoko (Mavoko Chief Magistrate ELRC No. E026 of 2022)
- Mavoko MCELRC Cause No. E026 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court ELRC causes (Employment Act / ELC Act appellate structure); court sat as first appellate Court re-evaluating evidence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hightech Cylinder Manufacturing Co. Limited v Wamukota (Appeal E012 of 2023) [2025] KEELRC 3705 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (Appeal from Mavoko Chief Magistrate ELRC Cause No. E026 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3705/eng@2025-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.