Andrew Odongo Omondi v Coca Cola Equator Bottlers Ltd

faithful service, Page 2 of 21

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the respondent subjected him to unfair labour practices that he was forced to resign from employment on 22 nd December 2017. 2. The unfair and unlawful labour practices were particularised as failing to provide the appellant with a job description and tossing him from one job to another, such Managing Director, General Sales Manager and Human Resource Manager; Forcing him to discharge duties that he had not been employed to perform and outside his area of expertise, without any training; setting of unattainable and unrealistic targets; forcing him to work overtime, very late at night and on Sundays and public holidays without pay; subjecting him to perpetual insults, abuses and profanities; and exposing him to harsh, deplorable and unconducive work environment. 3. By way of reliefs, the appellant prayed for a declaration that the respondent had subjected him to unfair and unlawful labour practices and constructive dismissal, in violation of the Employment Act; Ksh. 1,193, 653.00 as damages for unfair, unlawful and constructive dismissal equivalent to 12 months gross salary; payment of all unlawful deductions; Page 3 of 21

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certificate of Page 4 of 21

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service; Ksh. 298, 413.00 being three months’ salary in lieu of notice; costs and interest. 4. By an amended response to the claim dated 5th April 2019, the respondent denied the appellant’s claim and pleaded that the appellant did not perform his duties as expected. The respondent further denied having unfairly, unlawfully or constructively terminated the appellant’s employment or violating his rights under the Constitution and the Employment Act. 5. The appellant’s case was heard by Nduma, J., when the appellant testified on his behalf and closed his case. Nduma, J. was thereafter transferred from the station and Radido, J. took over the matter and heard the respondent’s case. One witness, Nicholas Odhiambo, the respondent’s human resource manager, testified on behalf of the respondent. The ELRC framed two issues for resignation was determination, namely: i. whether the appellant’s involuntary and unlawful; and ii. whether the appellant was entitled to the reliefs sought. Page 5 of 21

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6. By a judgment dated 10th February 2021, the ELRC found that the respondent had issued the appellant with a job description; that the respondent did not unilaterally vary the terms of the contract; that the nature of abuses and insults alleged by the appellant as well as the persons responsible were not disclosed; that the appellant did not prove that the respondent had made the work environment hostile so as to justify a finding of constructive dismissal; that he also did not prove the unlawful deductions that he alleged; and that in the circumstances the appellant was not entitled to pay in lieu of notice and compensation. However, the court directed the respondent to issue to the appellant a certificate of service within 21 days. Otherwise, the appellant’s claim was dismissed wit costs. 7. The appellant was aggrieved and lodged the present appeal, founded on seven grounds of appeal, which Ms. Chawiya, learned counsel holding brief for Ms. Ochieng for the appellant, reduced into one issue in written submissions dated 3rd June 2026. The single issue was whether the ELRC erred Page 6 of 21

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by holding that the respondent did not constructively dismiss the appellant. 8. In support of the appeal, counsel submitted that from the evidence adduced before the ELRC, the respondent employed the appellant as Area Sales Manager by a contract dated 1st November 2010 but subsequently directed him to start collecting monies, reconciling financial accounts and preparing financial statements, which duties were not in his job description. In the appellant’s view, the new responsibilities constituted unilateral, unequivocal and significant change of his job description, which required the respondent to issue him with a new job description reflecting his new responsibilities. He contended that the respondent failed to do so, thus creating a hostile work environment for him. 9. The appellant further submitted that contrary to the respondent’s assertion that the role of accounts developer was the same as sales representative, the two were vastly different and that his job description was only as sales representative, which did not include assuming financial responsibilities. It Page 7 of 21

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was contended that by changing the appellant’s job description without a new contract of employment and a new job description, the respondent breached the contract of employment dated 1st November 2010; violated sections 10(5) and 13 of the Employment Act and created a hostile work environment under which the appellant was unable to perform his duties. 10. The appellant relied on Coca Cola East & Central Africa Ltd v. Maria Kagai Ligaga [2015] KECA 394 (KLR) and Board of Governors, Cardinal Otunga High School, Mosocho & 2 Others 486 (KLR) v. Elizabeth Kwamboka Khaemba [2016] KECA regarding what constitutes constructive dismissal from employment and further submitted that unilateral assignment of new duties amounted to significant breach that went to the root of the employment contract and constituted constructive dismissal. It was further contended, on the authority of Ndereba v. Board of Management Miruriiri Girls Secondary School [2026] KEELRC 998 (KLR) that where assignment Page 8 of 21

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of additional duties is contemplated, those additional duties Page 9 of 21

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must bear a reasonable relation to the primary role. The decision in Anthony v. Communications Authority of Kenya & 3 Others [2022] KEELRC 1117 (KLR) was cited to underline the importance of consulting an employee and obtaining his or her consent before altering the terms of employment. 11. It was the appellant’s further argument that the appellant’s letter of resignation, in which he thanked the respondent for being patient with him, was immaterial to the question whether he was constructively dismissed, and that the only relevant consideration was the respondent’s conduct and not that of the appellant. For the above reasons the appellant urged the Court to allow the appeal with costs. 12. Ms. Ajwang and Mr. Kiragu, learned counsel for the respondent, opposed the appeal relying on written submissions dated 20th May 2025. It was contended that the ELRC properly dismissed the appellant’s claim because he did not prove constructive dismissal. 13. Relying on the decisions of the ELRC in Kenya Union of Page 10 of 21

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Sugarcane Plantation and Allied Workers v. Othira Page 11 of 21

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[2024] KEELRC 843 (KLR) and Kenneth Kimani Mburu & Another v. Kibe Muigai Holdings Ltd. [2014] KEELRC 723 (KLR), the respondent submitted that the appellant was obliged to prove that the respondent had breached of the contract of employment; that the breach was fundamental; that he resigned in response to the breach; and that there was no delay in resigning after the breach, otherwise the breach may be deemed to have been waived. 14. It was contended that in his letter of resignation, the appellant did not raise any compliant with the respondent, and that instead, he thanked the respondent and indicated that he was proud to have worked for the respondent. In the respondent’s view, that was conduct consistent only with voluntary resignation. The respondent relied on Laurence v. Multiple Hauliers [EA] Ltd [2023] KEELRC 1118 (KLR) and submitted that an employee who does not raise an objection or complain about alleged mistreatment cannot sustain a case of constructive dismissal. It added that the Page 12 of 21

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appellant had worked for fifteen months after the alleged repudiation of the contract of employment without raising any issue. Page 13 of 21

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15. It was also the respondent’s contention that there was no fundamental breach of the contract of employment because the contract of employment provided for transfer of the appellant in terms of location, duty and position within the establishment. In that respect the respondent cited Mutegi v. Chief Executive Officer, Kenya Development Leather Council & Another [2024] KEELRC 1447 (KLR) for the proposition that an employer retains the prerogative to allocate duties or assign responsibilities to an employee so long as that does not constitute demotion or fundamental change of the terms of employment. 16. Relying on section 47(5) of the Employment Act and the decision of the ELRC in Dungani v. West Kenya Sugar Co. Ltd. [2024] KEELRC 172 (KLR), the respondent submitted that the onus of proving unfair termination was on the appellant, and shifted to the employer only after the employee established a prima facie case of unlawful or unfair termination. It was contended that in this case, the appellant failed to discharge the burden of proof. Page 14 of 21

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17. For the foregoing reasons the respondent urged the Court to dismiss the appeal with costs. 18. We have carefully considered this appeal together with the submissions and the authorities relied upon by the parties. It is a first appeal and, therefore, the duty of this Court is to exhaustively reappraise the evidence that was adduced before the trial court and come to its own independent decision. In so doing, we must make allowance for the fact that we do not enjoy the advantage of the trial court, which saw and heard the witnesses as they testified. The approach of the Court was explained as follows in Gitobu Imanyara & 2 others v. Attorney General [2016] KECA 557 (KLR): “This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” 19. We are satisfied that the only issue in this appeal is whether the appellant proved before the ELRC that the Page 15 of 21

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respondent had constructively employment. As Page 16 of 21 dismissed him from

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earlier pointed out, the appellant’s case for constructive dismissal was based on the averments that the respondent failed to provide him with a job description; tossed him from one job to another; forced him to discharge duties that he had not been employed to perform and outside his area of expertise without any training; set unattainable and unrealistic targets; forced him to work overtime, very late at night and on Sundays and public holidays without pay; subjected him to perpetual insults, abuses and profanities; and exposed him to harsh, deplorable and unconducive work environment. 20. The ELRC and this Court have addressed the issue of constructive dismissal in a number of decisions. For example, in Coca Cola East and Central Africa Ltd v. Maria Kagai Ligaga (supra) and Board of Governors, Cardinal Otunga High School, Mosocho & 2 Others v. Elizabeth Kwamboka Khaemba (supra), this Court quoted with approval the dicta of Lord Denning in Western Excavating (ECC) Ltd v. Sharp [1978] 1 CR 222 where he stated: Page 17 of 21

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“If the employer is guilty of conduct which is a significant breach going to the root of the contract Page 18 of 21

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of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the constructively employer’s dismissed. conduct. The He is employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once.” 21. In Board of Governors, Cardinal Otunga High School, Mosocho & 2 Others v. Elizabeth Kwamboka Khaemba (supra), the respondent was employed by the appellant as a cateress. The appellant unilaterally assigned her a supervisory role in cleanliness of the boarding school. She treated the appellant’s action as termination of her employment and wrote to the appellant to that effect. In holding that there was constructive dismissal, the Court held: Page 19 of 21

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“In the circumstances that gave rise to the case before the trial court, we find and hold that the appellants assigning the Page 20 of 21 ’action of unilaterally

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respondent new duties amounted to significant breach that employment went to contract. the The root of the respondent was right in treating herself as discharged from any further cateress. performance She of cannot her be duties said as to a have absconded duty. This was a classic case of constructive dismissal of the respondent by the appellants. The respondent was rightly entitled to damages employment for unfair under termination section 49 of her of the Employment Act, 2007.” 22. Turning to this appeal, only the appellant testified on his behalf. The evidence on record shows that although in his witness statement the appellant stated that he was employed by the respondent on 9 th September 2007, the letter of appointment dated 30th October 2010 indicates that he was employed as a sales representative for an initial period of two years starting on 1 st November 2010 and ending on 31st October 2012, subject to renewal, depending on performance. 23. In his evidence before the ELRC, the appellant stated that the respondent constructively dismissed him and that he was employed as a sales representative and posted to Page 21 of 21

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Kakamega. He found the then area sales representative difficult to work Page 22 of 21

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with and raised the issue with the managing director and a meeting was called, which the area sales representative failed to attend. He was then transferred to Vihiga where he was “given some role” and after a while auditors informed him that the sales had gone down. He found it risky to collect cash, which could go on until the night, and that is why he resigned. He admitted that his letter of resignation did not reflect any displeasure on his part that that he even thanked the respondent for the opportunity of working as part of their team. 24. The appellant further confirmed that he resigned nine days after the respondent increased his basic salary to Ksh. 48,615.84, and that he had received a written warning dated 10th October 2016 indicating that he was underperforming and that disciplinary action was contemplated. He confirmed that he cleared with the respondent and was paid his terminal dues. It was his evidence that the respondent did not give him a proper job description but he also admitted that he did not have any formal complaint that he had raised with the respondent. Page 23 of 21

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25. For its part, the respondent’s witness testified that the appellant was employed as an accounts developer and that he had a job description. It was the witness’s further evidence that the appellant resigned voluntarily, cleared with the respondent and was paid his dues in full. He testified that the appellant was employed as a sales representative and that his designation was later changed to accounts developer, with the same duties and responsibilities as before, including submission of funds. He however conceded that the appellant’s job description in 2010 did not include financial reconciliation or financial responsibility. 26. The witness also confirmed that the appellant’s salary was regularly adjusted; that he had not raised any complaints of frustration and that he was not issued with a certificate of service. 27. The appellant’s letter of appointment provided as follows as regards his duties and responsibilities, hours of work, and overtime: “1. POSITION AND DUTIES Your position is Sales Representative and you will report to the AREA Sales manager who will specify Page 24 of 21

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your duties Page 25 of 21

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upon your commencement of employment. Please note that the location of your appointment, which may be anywhere in Kenya, will be finalised after your initial training period. It should be noted that from time to time you would be required to perform duties not specified and not usually associated with your normal work. The Company reserves the right to transfer you to other positions and duties within the Company as required… 6. HOURS OF WORK Unless otherwise agreed, your normal hours of work shall be 8 hours per day, 45 hours per week Monday to Saturday. Office hours are from 8.00 am to 5.00 p.m. with one-hour break for lunch. You are required to be at your designated place of work at the commencement of your working hours. The Company reserves the right to amend your working hours from time to time, as circumstances require, and without prior consultation… 7. OVERTIME Please note that due to the nature of your work, you will be required to work outside of normal working hours on a regular and ad hoc basis. No other emoluments and or benefits are payable to you and it is a condition of your employment that the aforementioned remuneration covers also a Page 26 of 21

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consideration for any daily or nightly Page 27 of 21

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extended or extra hours or public holidays you may be called upon to perform on the dictates of your job.” 28. From the letter of employment, the parties had mutually agreed that the appellant could be deployed to work anywhere in Kenya; that from time to time he could be assigned duties that are not usually associated with his normal duties; and that he could be transferred to other duties and positions within the respondent. Further, that although the appellant was to work for 8 hours per day, if circumstances so required the respondent would amend the working hours. Lastly, it was also agreed that by the nature and dictates of his work, the appellant would be expected to work outside normal working hours on regular or ad hoc basis. 29. It was therefore expressly stated and agreed in the contract of employment that there would be some variations as regards place of work, assignment of duties, and working hours. To the extent that those variations were within the contemplation and agreement of the parties, they cannot, of and by themselves, constitute a fundamental breach of the contract of employment dated Page 28 of 21

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30th October 2010. To amount Page 29 of 21

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to a fundamental breach of the contract of employment in the circumstances of this case, the variations had to be beyond what was contemplated and agreed to by both parties. 30. Although in his pleadings the appellant had averred that he was not issued with a job description and that he was tossed from place to place and job to job, at trial he admitted that he was issued with a job description for sales representative, and only mentioned Kakamega and Vihiga as the places he was deployed. We note that, indeed, clause 14 of the contract of employment expressly incorporated appellant the and duties and responsibilities of the provided 21 different duties and responsibilities, including a general one of “other duties as assigned.” 31. With great respect to the appellant, the evidence he adduced to prove his case left a lot to be desired, and we agree with the ELRC that he did not discharge the burden of proof on him. Other than the averments in the statement of claim (pleadings), he did not lead any evidence of the duties outside the job description which he Page 30 of 21

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was required to perform; and when such duties were assigned. He testified to having been Page 31 of 21

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posted only to Kakamega and Vihiga, which cannot, in light of the terms of the letter of employment, be regarded as being “tossed from place to place”. There was absolutely no evidence of insults or abuses directed at the appellant, or the author thereof. Above all, other than generalised statements, he did not adduce any evidence of having objected or complained to the respondent that he was being requested to discharge responsibilities outside his job description or that he was being compelled to work in a toxic environment. 32. The appellant’s attitude and state of mind at the time of his resignation on 22 nd December 2017 is, perhaps, best captured in the tone and tenure of his letter of resignation, in which he stated as follows: “Subject: Re: Notice of my resignation I am writing to inform you that i will be resigning and giving a two weeks notice beginning 25th December 2017 to 6th January 2018. I would like to thank you for having me as part of your team. I am proud to have worked for Equator bottlers Ltd, now CCBA and I appreciate the time and patience you have shown in training me. I have learnt a lot about Page 32 of 21 management and

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leadership and these shall serve me well in future. Page 33 of 21

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Please acknowledge this letter as my official notice of resignation. I will ensure smooth transition. I have been fortunate to have been part of Equator Bottlers Ltd now CCBA and I wish you a continued success. Sincerely, Andrew Omondi.” 33. That letter, coupled with the total lack of evidence of protest or objection on the part of the respondent, strongly suggests that the appellant’s resignation had nothing to do with a hostile work environment constituting constructive dismissal. On the contrary, it could have had everything to do with the fact that on 10 th November 2016, the respondent had served him with written warning that his performance was lacklustre and below the set standards and that unless there was improvement within twelve months, disciplinary action would ensue. 34. Having carefully re-evaluated the evidence on record, we find that there is no basis for faulting the ELRC for holding that the appellant did not discharge the burden of proof on him and therefore failed to prove constructive dismissal. Page 34 of 21

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Accordingly, this appeal has no merit and is hereby dismissed with costs to the respondent. It is so ordered. Dated and Delivered at Kisumu this 25th day of September, 2026. K. M’INOTI …………………………….. JUDGE OF APPEAL E. C. MWITA …………………………….. JUDGE OF APPEAL B. ONGAYA …………………………….. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR Page 35 of 21

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