https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1314

Abdulla v Multivista Kenya Limited & another (Petition E125 of 2025) [2026] KEELRC 1314 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1314 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E125 of 2025 JK Gakeri, J May 18, 2026 Between Nabila Ibraham Abdulla Petitioner and Multivista Kenya Limited 1st Respondent Suthran Siva 2nd Respondent Judgment 1.The Petitioner filed the instant Petition on 19th June, 2019 alleging that the Respondent mistreated her, subjected her to psychological mistreatment, public ridicule and discriminatory environment which culminated in her resignation, which the Petitioner described as involuntary. 2.The Petition is grounded on Articles 1(1), 2(1), 3(1), 10, 19, 20(1) and (2) 22(1), 27(5), 28, 41, 47(1) and (2), 258(1) and 259(1) of the Constitution of Kenya. 3.The Petitioner prays for:A.A Declaration that the Petitioner’s constructive dismissal from employment was unlawful, unfair and in violation of her rights and Articles 27(5), 28, 41 and 47 of the Constitution of Kenya.B.A Declaration that the 1st Respondent violated the Petitioner Constitutional rights under Articles 27(5), 28, 41 and 47 by permitting, condoning and failing to address a hostile discriminatory and psychologically, abusive work environment.C.A Declaration that the 2nd Respondent through his conduct as Deputy Director personally violated the Petitioner’s Constitution rights under Articles 27(5), 28 and 41 of the Constitution of Kenya.D.An Order of compensation by way of general damages under Articles 23(3) for breach of Articles 27(5) of the Constitution, Article 28 of the Constitution and Article 47 of the Constitution.E.In the ALTERNATIVE and without Prejudice to D above, an order for payment of terminal dues to wit; 12 months salary as damages for contractive dismissal of Kshs.660,000.00F.The Respondents to bear costs of the Petition. 1st Respondent’s Case 4.In opposition to the Petition, the 1st Respondent filed a Replying Affidavit sworn by Yogendra Prasad on 22nd January 2026 who deponed that the Petition was bad in law, frivolous, vexatious, lacked merit and was for dismissal. 5.The affiant admitted that the 1st Respondent employed the Petitioner vide Letter of Appointment dated 11th February 2025, commenced probation on 12th February 2025 and left on 12th May, 2025 when she voluntarily terminated the contract of employment. That during probation, the contract of employment was terminable by one (1) months’ notice and her supervisor was the Senior Service Manager Ms Suthran Siva, the 2nd Respondent, an officer of unimpeachable integrity and work ethic. 6.The affiant denied that the Petitioner was psychologically mistreated demeaned or subjected to public ridicule and no evidence of the alleged mistreatment had been provided and the alleged malicious accusation by the 2nd Respondent to the General Manager lacked tangible evidence and the alleged conduct of the General Manager was false. 7.The affiant denied that the Respondent violated the Petitioner’s Constitutional rights and urged the court to dismiss the Petition. 2nd Respondent’s Case 8.By a Replying Affidavit sworn on 22nd January 2026, the 2nd Respondent deponed that she was directly involved in the Petitioner’s employment during her employment and denied having subjected the Petitioner to psychological mistreatment, demeaning language patronizing conduct or ridicule. 9.The affiant deponed that she interacted with the Petitioner in a professional manner, task-related in helping her adopt to her new duties and performance standards. The affiant denied having made malicious accusations against the Petitioner to the General manager. 10.The end Respondent deponed that she acted fairly, transparently, professionally and in a non-discriminatory manner. 11.According to the affiant, the allegations made by the Petitioner were at most ordinary workplace disagreements and the remedies sought were disproportionate because the 1st Respondent acted lawfully and reasonably, and the Petitioner lacked evidence against her. The affiant urged the court to dismiss the petition with costs. Petitioner’s Submission 12.As to whether the Petitioner was constructively dismissed by the Respondents, reliance was placed on the sentiments of the Court of Appeal in Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga (2015) eKLR on the essence and elements of constructive dismissal to submit that the 1st Respondent failed to make the Petitioner’s work environment tolerable. 13.Counsel submitted that the Petitioner resigned on account of continued emotional distress professional humiliation, and lack of institutional support which made the work environment intolerable. 14.As to whether adverse actions taken by the 1st Respondent against the Petitioner were contrary to the principles of natural justice, fairness and procedural propriety, counsel submitted that the 1st Respondent acted on the malicious allegations without according the Petitioner the opportunity to be heard and failed to conduct fair or impartial investigations before endorsing the adverse conclusions about the Petitioners’ conduct and performance, thereby violating the provisions of Article 47(1) of the Constitution of Kenya. 15.Reliance was placed on the sentiments of the court in Msagha v Chief Justice & 7 others (2006) 2 KLR 553 on natural justice. Counsel urged that the 1st Respondent failed to intervene or investigate the complaints of work place harassment. 16.As to whether the 2nd Respondent’s conduct towards the Petitioner amounted to discrimination or unequal treatment in the work place, reliance was placed on the decision in Pravin Bouvy v Ethics & Anti-Corruption Commission (2013) eKLR on discrimination, to urge that during the Petitioner’s employment, the 2nd Respondent singled her out for oppressive supervision and denied her professional respect extended to other employees, subjected her to systematic psychological mistreatment, condescension, public ridicule, demeaning language and patronising conduct and the Petitioner’s apology to the clients was inconsequential. That the 2nd Respondent’s conduct was discriminatory. 17.Finally, counsel submitted that the Respondent’s failure to avail employment records as directed by the court impeded the Petitioner’s ability to fully present her case. 18.Reliance was placed on Kenya Building Construction, Timber & Furniture Industries Employee Union v Vaghjirani Enterprises Ltd (Cause No 720 of 2022) and Karimi v Director of Public Prosecutions (Misc Application E043 of 2024). 19.The Respondents did not file submissions Analysis and determination 20.It is common ground that the Petitioner worked for the 1st Respondent from 12th February 2026 to 12th May 2025 she tendered her resignation. Strangely, the Petitioners Supporting Affidavit bore no date of the alleged resignation nor an allegation or proof that the resignation was in writing, to whom it was made and what transpired thereafter. 21According to the Petitioner the Respondent oriented her and provided basic training for three (3) weeks but the transition from the outgoing Service Coordinator to the 2nd Respondent was far from cosy. 22.The Petitioner alleged That the work environment became hostile characterised by psychological mistreatment, public ridicule condescension, demeaning language and patronizing conduct. 23.That the 2nd Respondent made malicious accusations against the Petitioner to the General Manager who acted on them without investigation or intervention. 24.Intriguingly, the Petitioner availed no verifiable evidence on her relationship with the 2nd Respondent her work or any other person during her service at the 1st Respondents premises. She did not allege having complained to the General Manager when and how or any other person. She did not allege to have written any email to anyone on anything germane to her employment or resignation. Particulars of the alleged mistreatment, condescending attitude, public ridicule demeaning language, patronizing conduct and malicious accusations were not provided. 25.Put in the alternative, none of these nouns was unwrapped. 26.The Respondents denied the foregoing allegations and faulted the Petitioner for not availing proof of her allegations. 27.The issues for determination are:i.Whether the Respondents violated the Petitioner’s constitutional rights.ii.Whether the Petitioner was discriminated by the Respondents.iii.Whether the Petitioner’s employment was constructively dismissed by the Respondents. 28.Before delving into the foregoing issues, it is essential to address the issue of employment records raised by the Petitioner’s counsel in his submissions. 29.It is correct that the law requires the employer to keep employment records on all aspects of employment including, employment contract annual leave off days, sick off, maternity, warning letters, performance leaves and polices among others. 30.Although there is no record of the documents the petitioner had sought form the Respondents, court records show that on 30th September 2025 he parties consensually agreed that the Respondent would supply the documents by close of business and they had not been supplied by 23rd October 2025 when the Respondents were absent. 31.On 27th November 2025 the court directed that the documents be supplied within 7 days and the same had been supplied by 15th January 2026 when counsel informed the court that they had supplied what they had. 32.Although the petitioner’s counsel notified the court that he had received one (1) document out of the 4 requested for, he did not contest the issue further and no direction on the availment of documents was issued thereafter. 33.Notably, counsel for the petitioner did not file any Affidavit attesting to the Respondents failure to avail any particular document(s), which would have enabled the petitioner embellish her case. A list of the documents required would have been helpful to the court. 34.It is trite law that submissions are neither pleadings nor evidence and are parties “marketing language” as held in Moi v Muriithi & another (2014) KECA 642 (KLR). 35.The Petitioner was obligated to demonstrate to the court that the non availment of a particular document(s) by the Respondents impeded the petitioner’s right to fair hearing or right to be heard. In the absence of an affidavit to that effect, the court is satisfied and finds that nothing turns on the issue of employment records. 36.The issue as to whether the Respondents violated the Petitioner’s constitutional rights is in inextricably tied to the overarching issue of whether the Petitioner proved her case to the required standard. 37However, before addressing the general issue of burden of proof, it is important to point out that the facts relied upon by the Petitioner are generalized allegations lacking in particularity and specificity. How for instance did the psychological mistreatment manifest itself? What of public ridicule or demeaning language? Were there memorable instances when any of the alleged acts occurred in the presence of anyone else such as fellow employee? What language did the petitioner deem or consider demeaning? Or what type (s) of conduct was patronizing and when did it occur? Any dates, times of the day venue in or out of the office. 38.The foregoing questions bring to the fore absence of relevant, credible particulars to substantiate each allegation. 39.Similarly, the alleged false and malicious accusations by the 2nd Respondent were undisclosed. What were the allegations? What did they relate to? When were they communicated to the General Manager and what did the General Manager do? What adverse decision did the General Manager take and when? 40.In the court’s view the dearth of particulars in the Petitioner’s factual foundation of the Petition was unsettling and patently inadequate to sustain the Petition let alone satisfy the rule in Anarita Karimi Njeru v Republic (1979) KLR 154 on the requirement of precision in constitutional petitions. Each of the conduct complained of by the Petitioner required unpackaging through availment of particulars or supportive evidence and more so because the Respondents denied all the allegations made against them. The Petitioner had no option but to marshal sufficient evidence to prove the allegations on a balance of probabilities 41.It is trite law that he who alleges must prove the allegations as ordained by the provisions of section 107, 108, 109 and 112 of the Evidence Act. The claim or suit must be proved as pleaded and to the requisite standard of proof for judgment to be entered in the partys favour. 42.In Karugi & another v Kabiya & others (1987) KLR 347 Hancox JA held:“…The burden on the Plaintiff to prove his case remains the same, though it is true that where the matter is not defended, or as here, validly defended, the burden may become easier to discharge…” 43.Similarly, in Janet Kaphiphe Ouma & another v Marie Stopes International (Kenya) Kisumu v HCCC No. 680 of 2007 Ali Aroni J citing the decision in Eduward Muriga Through Stanley Muriga v Nathaniel D Schuiter Civil Appeal No. 230 of 19977 said:“…Section 5 107 and 108 of the Evidence Act are clear that he who alleges or pleads must support the same by way of evidence” 44.See Kamau Mbogo v Settlement Land Trustees (2025) KECA 561 (KLR) Charterhouse Bank Ltd (under statutory Management) v Frank N. Kamau Nairobi Civil Appeal No. 87 of 2014 and Moses Segite v (Kenya Flouspar Ltd (2021) KECA 1063 (KLR). 45.Finally, on the issue of proof, the Petitioner alleged that she was subjected to a toxic and discriminatory work environment. 46.Puzzlingly, no particulars of the alleged toxicity or discrimination were availed. 47.Needless to belabour unfair discrimination presupposes more than one person or group or class of persons where a person, class or group is treated favourably or accorded privileges or benefit which are not accorded to the other person(s), class or group without any lawful justification. There is invariably some form of comparison. There must have been comparators who were treated differently from the treatment the Petitioner received. Particulars of treatment or benefit or the privileges they were accorded but the petitioner was not, ought to have been particularised but were not. 48.In sum, particulars of the alleged discriminatory conduct by the Respondents were not demonstrated. It behoved the Petitioner to discharge the initial burden of proof by establishing a prima facie case of discrimination, which the Respondents would have been bound to rebutt as the burden of proof would have shifted to them. 49.In the instant case the allegations lacked supportive evidence and were thus not proved for the burden of proof to shift to the Respondents. 50.From the foregoing, the court finds that the Petitioner failed to prove that any of his constitutional rights were violated or infringed by the Respondents or any of them. 51.Nothing turns on this issue. 52.As to whether the Petitioner was constructively dismissed by the Respondent, it is common ground that the most authoritative rendition of the principle of constructive dismissal are the sentiments of Lord Denning MR in Western Excavating (ECC) Ltd v Sharp (1978) QB761 which the Court of Appeal cited with approval in Coca Cola East & Central Africa Ltd v Maria Kegai Ligaga (Supra). 53.The Court of Appeal held;“The key element in the definition of constructive dismissal is that the employee must have been entitled or have the right to leave without notice because of the employers conduct. Entitled to leave has two interpretations which gives 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 gave that it constituted a repudiatory breach of the contact of employment. This is the contractual test. The contractual test is narrower than the reasonable test. The dicta in Western Excavating (ECC) Ltd v Sharp (1978) ICR 222 adopts the contractual approach test and we are persuaded that the test is narrow precise and appropriate to prevent manipulation or overstretching the concept of constructive dismissal. For this reason, we affirm and adopt the contractual test approach. This means that whenever an employee alleges constructive dismissal a court must evalvate if the conduct of the employer was such as to constitute a repudiatory breach of the contract of employment. Whether a particular breach of contract is repudiatory is one of mixed fact and law..” 54.The Court of Appeal proceeded to articulate the legal principles relevant in determining constructive dismissed which include the fundamental or essential terms of the contract of employment, whether there is a repudiatory breach of a fundamental term, conduct of the employer must be fundamental going to the root of the contract, objectivity of the test causal link between the employer’s conduct and the reason for terminating the contract, employee’s leaving with or without notice, the employee must not have accepted, waived, acquiesced or conducted himself or herself so as to be estopped from asserting repudiatory breach, proof of constructive dismissal and varied fact situations. 55.In the instant case, it is common found that the petitioner left the Respondent’s employment on 12th May 2025 and although the Petitioner deponed that she tendered a her resignation, she neither disclosed the form it took nor when it happened and to whom the resignation was tendered or its contents including what transpired thereafter. 56.Puzzlingly, the petitioner’s deposition that the resignation was not voluntary lacked supportive evidence, bearing in mind that Mr. Yogendra Prasad, the Respondent’s Country Head deponed that the Petitioner voluntarily terminated her employment contrary to the terms of appointment by failing to give one (1) notice. Since the leaving was a contested issue, it was incumbent upon the Petitioner to establish why she resigned on a preponderance of probabilities by availment of the resignation letter, which hopefully had the reasons or regurgitating in court what she told the person to whom she tendered the resignation. 57.Without any verifiable evidence on the circumstances preceding and culminating in the resignation as well as the reasons therefore, it is injudicious for the court to presume that the petitioner was harassed and discriminated by the 2nd Respondent who made the work environment toxic and intolerable, thus committed a repudiatory breach of the contract of employment, which occasioned the petitioners resignation. 58.It behoved the petitioner to adduce verifiable and convincing evidence of the alleged harassment, mistreatment, discrimination, or toxic working environment. It is unclear to the court what the 2nd Respondent did or did not do to constitute mistreatment, harassment, discrimination or toxicity at the work place. The facts relied upon by the Petitioner appear to suggest that the 1st Respondent had only 3 employees, the Petitioner 2nd, Respondent and the General Manager. There was no reference to colleagues or other employees or how the 2nd Respondent interacted with them and where. 59.From the foregoing, it is the finding of this court that the Petitioner has failed to provide sufficient material before the court to justify a finding that the Respondent’s alleged conduct or any of them amounted to a repudiatory breach of the contract of employment occasioning a constructive dismissal. 60.Both the Petition and Supporting Affidavit and the submissions adverted to the General Manager having acted on the malicious and false allegations made by the 2nd Respondent. It is unclear to the court what the General Manager did or what decision he took. This is important because the petitioner did not allege that the General Manager took any adverse action or decision against her. 61.A panoramic view of the Petitioner’s case creates the impression that the Petitioner knew more than she disclosed in her documents thereby leaving the court without critical and essential facts. 62.Flowing from the foregoing it is discernible that the Petitioner has failed to prove her case against the Respondents, it is for dismissal want and it is accordingly dismissed with no Orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 18TH DAY OF MAY, 2026.DR. JACOB GAKERIJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 18TH DAY OF MAY, 2026.DR. JACOB GAKERIJUDGE