Achuny v Valley Confectionery Ltd (Employment and Labour Relations Appeal E058 of 2025) [2026] KEELRC 1982 (KLR) (10 July 2026) (Judgment)

Achuny v Valley Confectionery Ltd (Employment and Labour Relations Appeal E058 of 2025) [2026] KEELRC 1982 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1982 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Employment and Labour Relations Appeal E058 of 2025 AN Mwaure, J July 10, 2026 Between George Onyango Achuny Appellant and Valley Confectionery Ltd Respondent (Being an Appeal from the Judgment and orders of the Honourable K. Kibelion, Senior Principal Magistrate delivered on 3rd October in Nakuru MCELRC No. E173 of 2022) Judgment 1.The Appellant, being dissatisfied with the judgment and orders of the Honourable Senior Principal Magistrate K. Kibelion, filed this appeal vide a Memorandum of Appeal dated 14th October 2025 on grounds that: -1.The learned trial Magistrate erred in law and in fact in finding that the Appellant was not constructively dismissed, despite there being overwhelming evidence to that effect.2.The learned trial Magistrate erred in fact by failing to find that the conduct of the Respondent made it so intolerable for the Appellant to continue working, hence his resignation.3.The learned trial Magistrate erred in fact in relying on warning letters issued to the Appellant despite the fact that the said letters had already become void as per clauses 21(v) and (vi) of the collective bargaining agreement.4.The learned trial Magistrate erred in law and in fact in relying on the Respondent’s summary dismissal letter whereas the Respondent did not prove the validity of the reasons for termination stated therein.5.The learned trial Magistrate erred in law and in fact by finding that the Appellant was not underpaid.6.The learned trial Magistrate erred in law and in fact in finding that the Appellant was not entitled to one month’s salary in lieu of notice.7.The learned trial Magistrate erred in law and in fact by awarding the Claimant half the cost of the claim.8.The learned trial Magistrate erred by entering judgment against the Appellant without taking into account the evidence and submissions by the Appellant in totality.9.The learned trial Magistrate erred by failing to uphold the Appellant’s cogent and consistent evidence adduced in support of the Appellant’s case 2.The Appellant prays that:a.The judgment of the Honourable court delivered on 3rd October 2025 in Nakuru MCELRC/173/2022 be set aside.b.The Appellant’s claim be allowed.c.Full costs at the Honourable trial court be awarded to the Appellant.d.The costs of the Appeal be awarded to the Appellant. 3.The Respondent, on the other hand, filed a cross-appeal dated 17th March 2026 based on the following grounds that:1.The learned trial Magistrate erred in law and in fact in awarding the Claimant Kshs.15,467.81 being the salary for the days worked in March 2022, yet there was evidence showing that the said salary was paid.2.The learned trial Magistrate erred in law and in fact in awarding the Claimant half costs of the Claim on the belief that his claim was partially successful.3.The learned trial Magistrate erred in law and in fact in failing to consider the evidence tendered by the Cross Appellant before him that the Claimant had been paid all his dues.4.The learned Magistrate erred in law and in fact in disregarding the evidence and submissions by the Cross Appellant. 4.The appeal and cross-appeal were disposed of by way of written submissions. Appellant’s submissions 5.The Appellant submitted that the trial court erred in failing to find constructive dismissal despite clear evidence of intolerable working conditions. He cites persistent demands by the transport manager and supervisor for Kshs.10,000/= reimbursement and denial of work assignments, which made continued employment impossible. Reliance is placed on Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), where the Court of Appeal held that constructive dismissal arises from employer conduct so intolerable that resignation is involuntary. 6.The Appellant argued that the trial court wrongly relied on warning letters issued between 2011 to 2013 to impute poor performance. Under Clause 21(v) and (vi) of the Collective Bargaining Agreement (CBA), such letters lapse after twelve months without further offences. The Appellant submitted that these letters had become invalid and could not lawfully be relied upon. 7.The Appellant argued that the court erred in relying on the Respondent’s summary dismissal letter dated 14th March 2022, which alleged absconding duty for two days. Under Clause 49(a) of the CBA, termination for absconding requires absence exceeding ten days. The appellant contended that the Respondent failed both the substantive and procedural fairness tests, and the dismissal letter was invalid. 8.The Appellant submitted that his salary was below statutory minimums under Legal Notice No. 64 of 2011, and the Respondent failed to produce payslips or employment records as required. He argued that the burden to maintain employment records rests with the employer, and the trial court erred in finding no underpayment. 9.The Appellant submitted that the trial court awarded only half costs, contrary to section 27 of the Civil Procedure Act, which provides that costs follow the event. The Appellant insists he proved his case and was entitled to full costs. 10.The Appellant maintains that the trial court ignored cogent evidence and submissions, misapplied the law, and reached findings contrary to statutory provisions and binding precedent. He therefore prays that the judgment be set aside and substituted with one allowing his claim in full. Respondent’s submissions 11.The Respondent submitted that constructive dismissal was not proved, since the resignation letter of 11th March 2022 did not mention the alleged demands for Kshs.10,000/= or denial of duties, and the Respondent produced warning letters showing poor performance. The Respondent relied on Kihara v Almasi Bottlers Ltd & Another [2025] KECA 1893 (KLR) and Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga(Supra), which emphasize that constructive dismissal requires intolerable employer conduct amounting to a repudiatory breach under Section 45 of the Employment Act. 12.The Respondent submitted that the remarks on warning letters were obiter dicta and did not affect the judgment. The Respondent contended that employment ended on 11th March 2022 upon resignation, not 14th March 2022, and the summary dismissal letter was properly relied upon. 13.The Respondent argued that the Appellant failed to prove underpayment, as no legal notices were produced, the figures relied on were for tractor drivers, and claims up to August 2019 were time‑barred under section 90 of the Employment Act. 14.The Respondent submitted that they maintain that costs are discretionary under section 27 of the Civil Procedure Act, and no improper exercise of discretion was shown. The Respondent asserts that the trial court properly evaluated the evidence. 15.Finally, in the cross‑appeal, the Respondent challenge the award of Kshs.15,467.81 for March 2022 salary, pointing to a payslip showing payment of Kshs.17,856/=, and seek to set aside both the award and half costs, urging that the Appellant’s claim should have been dismissed entirely and costs awarded to the Respondent. Analysis and determination 16.Being the first appellate court, this Honourable Court is cognisant of the principles enunciated in Peters V Sunday Post Limited [1958] EA 424 where the Court of Appeal held as follows:“i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.” 17.Having considered the memorandum of appeal, cross of appeal together with rival submissions; the issues for determination are whether the trial court erred in entering judgment in favour of the Respondent. 18.In Coca Cola East & Central Africa Limited V Maria Kagai Ligaga(Supra) the Court of Appeal stated as follows:“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.” 19.The Court of Appeal further gave a breakdown of guiding principles when dealing with constructive dismissal as follows:a.What are the fundamental or essential terms of the contract of employment?b.Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer?c.The conduct of the employer must be a fundamental or significant breach going to the root of the contract 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.d.An objective test is to be applied in evaluating the employer’s conduct.e.There must be a causal link between the employer’s conduct and the reason for the employee terminating the contract; that is causation must be proved.f.An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination.g.The employee must not have accepted, waived, acquiesced or conduct himself to be estopped from asserting repudiatory breach; the employee must-within a reasonable time terminate the employment relationship pursuant to the breach.h.The burden to prove repudiatory breach or constructive dismissal is on the employee.i.Facts giving rise to repudiatory breach or constructive dismissal are varied. 20.In this instant appeal, the Appellant stated that he was employed by the Respondent as a salesman driver in 2011 earning a salary of Kshs.13,570/=, which was later increased to Kshs.25,615/=. He contended that in March 2022 he was constructively terminated as the working environment had been rendered unconducive and so he gave a resignation letter dated 11th March 2022. The Respondent, however, maintained that the Appellant voluntarily resigned without citing any unconducive environment. The trial magistrate held that the Appellant resigned from his employment and was not constructively dismissed. 21.The court considered the Record of Appeal and the submissions of the respective parties and their cited authorities this court agrees with the trial Magistrate’s finding that Appellant resigned voluntarily. The resignation letter dated 14th March 2022 contains no indication of constructive dismissal. He did say he resigned because of his Transport Manager and his Supervisor. Other than that, he did not give specifics of how the employer made the work environment unsuitable for him to remain as an employee. In Milton M. Isanya v Aga Khan Hospital Kisumu [2017] KEELRC 571 (KLR), the court similarly held that resignation without evidence of intolerable working conditions does not amount to constructive dismissal. 22.The provisions of factors that justify constructive dismissal as set out in the case of Coca Cola East and Central Africa -vs- Maria Kagal Ligaga (Supra) have not been met in this case as proof of constructive dismissal. The Appellant did not proffer any evidence to demonstrate a fundamental breach of the contract by the Respondent going to the root of the said contract 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. 23.In conclusion and as a result of the reasons set out in the judgment, the court agrees with the trial court that the Appellant left his employment by his own choice and so the case of constructive dismissal is not proved. 24.On the cross‑appeal, the court is not persuaded by the Respondent’s arguments. It is trite law that upon resignation, an employee remains entitled to terminal dues in accordance with section 36 of the Employment Act, and this court finds such entitlement fair and proper. The Appellant is entitled to his salary for the days worked and half of the costs. 25.Flowing from the foregoing, the Court finds that both the appeal and the cross‑appeal lack merit. They are accordingly dismissed and each party will meet their respective costs of the Appeal. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 10TH DAY OF JULY, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn 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.A signed copy will be availed to each party upon payment of Court fees.