Mwinamo v Shoppers Sacco Society Ltd

10. On 5 December 2018, the Claimant resigned, wherein she stated: … I have currently been faced with a myriad of various challenges that are making it extremely dificult to efiectively deliver at full potential as a Human Resource Manager. I am also finding that my relationship with certain employees in the organisation may not favour optimal performance in my role or theirs. 11. Before the Court, the Claimant, a Human Resource and Development Manager, testified that in August 2016, the Respondent’s then Chief Executive Oficer started frustrating her by taking all stafi files, transferring the role of monitoring stafi attendance to the ICT department and denying her access to the payroll system. 12. The Claimant also testified that in October 2016, the Chief Executive Oficer unilaterally imposed on her marketing duties contrary to her job description and forced her to go and recruit members from Naivas supermarket without any training, and that on 17 November 2016, the Chief Executive Oficer ambushed her to attend a training at 5.00 pm while other stafi had been notified of the training a day earlier and that this led to a show cause when she did not attend the training. 13. The Claimant further stated that the show cause gave her limited time to respond and that after responding she was invited to attend a Board meeting on a Saturday without being informed of the agenda of the meeting and that despite the lapse of the suspension, she was not informed of the outcome of the Board meeting, prompting her to resign on 5 December 2016. 14. The Respondent’s witness joined the Respondent long after the Claimant had separated from the Respondent, and his testimony did not give any insights to rebut the Claimant’s testimony. 15. To succeed in an action for constructive dismissal, the Claimant must provide evidence that the employer created a hostile work environment, causing him or her to leave with or without notice. 16. The Court of Appeal addressed the question of constructive dismissal in Coca Cola East & Central Africa Limited v Maria Kagai Lugaga (2015) eKLR, wherein it stated: The key element in the definition of constructive dismissal is that the employee must have been entitled to or have the right to leave without notice because of the employer’s conduct. Entitled to leave has two interpretations, which give rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behaviour towards him was so unreasonable that he could not be expected to stay - this is the unreasonable test. The second interpretation is that the employer’s conduct is so grave that it constitutes a repudiatory breach of the contract of employment- this is the contractual test……. 17. The Claimant was a Human Resources and Development Manager. The Respondent gave her marketing functions without consultation as demanded by section 10(5) of the Employment Act, 2007. The Claimant testified that the then Chief Executive Oficer took stafi files away from her, though she was in charge of the human resource docket. She was denied access to the payroll system. 18. At the level of the Claimant, one would have expected a harmonious work relationship with her superior, the Chief Executive Oficer. The evidence on record suggests otherwise. 19. The Court is satisfied that the Respondent created a hostile work environment, warranting the Claimant to resign and assert constructive dismissal. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2962/eng@2025-10-30 2

page 2 of 4

Compensation 20. The Claimant served the Respondent for about 3 years, and the Respondent ofiered her certain terminal dues. 21. Considering the above factors, the Court is of the view that the equivalent of 4 months' gross salary as compensation would be appropriate (gross monthly salary was Kshs 105,000/-). Pay in lieu of notice 22. The Respondent deducted the equivalent of 1 month's salary from the Claimant's dues on account of 1 month's pay in lieu of notice. 23. With the conclusion on constructive dismissal, the Court will award the Claimant this head of the claim. Severance pay 24. The Claimant did not separate from the Respondent on the ground of redundancy. She is not entitled to severance pay. Breach of contract Withheld pay in November 2016 25. The Claimant was suspended on half-pay. The Respondent did not disclose the source of the power to suspend the Claimant on half-pay, and the Court will allow the head of claim in the sum of Kshs 52,500/-. Loan recovery 26. The Claimant contended that the Respondent had over-recovered loans she had taken to the tune of Kshs 286,027/- and that the Respondent had declined to provide her with a statement of account. 27. The computations by the Claimant were based on suppositions, and the best option for the Court would be to order the Respondent to provide the statement of account and reconcile the same together with the Claimant. Violation of rights to dignity and privacy 28. The Claimant pleaded to be awarded general damages because the Respondent used her image for promotional advertisements on Citizen TV without her consent from 31 October 2016. 29. The Claimant did not place before the Court any evidence to prove the use of her image, and the Court finds this head of the claim was not proved. Certificate of Service 30. A Certificate of Service is a statutory entitlement, and the Respondent should issue one to the Claimant if it was not issued. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2962/eng@2025-10-30 3

page 3 of 4

Conclusion and Orders 31. The Court finds and declares that the Respondent constructively dismissed the Claimant, and that the Respondent was in breach of contract. 32. The Claimant is awarded: i. Compensation Kshs 420,000/- ii. Pay in lieu of notice Kshs 105,000/- iii. Withheld salary Kshs 52,500/TOTAL Kshs 577,500/- 33. The awards to attract interest at court rates from the date of judgment. 34. The Respondent to issue a Certificate of Service within 21 days. 35. The Claimant to have costs. DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI ON THIS 30TH DAY OF OCTOBER 2025. RADIDO STEPHEN, MCIARB JUDGE Appearances For Claimant A. Thuo Kanai Advocates For Respondent Keengwe & Co. Advocates Court Assistant Wangu https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2962/eng@2025-10-30 4

page 4 of 4