https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2169

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISII** **CAUSE NO. E005 OF 2025** SAMUEL OTIENO OMOLLO…….............................................**CLAIMANT** **VERSUS** SHABANA FOOTBALL CLUB…...…….……..……………**RESPONDENT** **JUDGMENT** 1. The Claimant instituted this suit through a Statement of Claim dated 17th February 2025 contending that he was employed by the Respondent as its Head Coach in June 2023 at a monthly net salary of Kshs. 150,000/-. Following the expiry of his initial contract in July 2024, the parties executed a fresh contract dated 1st August 2024 under which the Claimant earned a monthly salary of Kshs. 160,000/- together with a performance bonus of Kshs. 10,000/-. 2. The Claimant avers that at the time of his employment the Respondent was teetering at the edge of the relegation zone, and through his diligent work he was able to steer it clear from that zone by the end of the season. However, on 24th October 2024, after preparing the team for an away match against Kariobangi Sharks, he was instructed via WhatsApp by the Respondent's Secretary not to travel with the team and was assured that he would resume his duties thereafter. He contends that the Respondent subsequently ceased communication with him, excluded him from the team's activities, appointed another coach in his place and thereby constructively and unfairly terminated his employment without notice, reasons or a disciplinary hearing. The Claimant further contends that during the pendency of employment the Respondent failed to conduct the contractual performance appraisal, withheld salary arrears, failed to pay house allowance and did not remit his statutory NSSF and NHIF contributions. He therefore seeks the following reliefs: * + 1. A declaration that the Respondent is in breach of contract; 2. A declaration that he was constructively dismissed; 3. A declaration that his termination was unlawful and unfair; 4. General damages for constructive dismissal and breach of contract; 5. Kshs. 1,600,000/- in 10 months' compensation for constructive, unfair and/or unlawful termination of employment; 6. Kshs. 160,000/- in 1 months' salary in lieu of notice; 7. Kshs. 318,000/- in unpaid house allowance; 8. Kshs. 75,000/- salary arrears for the month of June 2023; 9. Kshs. 85,000/- salary arrears for September 2024; 10. Costs of the suit; 11. Interest on items above; and 12. Such further relief the court may deem fit to grant. 3. Opposing the suit the Respondent filed a Memorandum of Response and Counterclaim dated 25th March 2025. From the outset, it avers that in so far as the suit is based on the non-existent contract dated 1st August 2024 it is incompetent. It avers that the applicable contract was executed on 25th July 2024. That notwithstanding, it maintains that it did not terminate the Claimant's employment. Instead, it contends that the Claimant absconded duty after failing to accompany the team for its match against Kariobangi Sharks on 26th October 2024 and never resumed work. It further avers that it astonishingly found out on 9th February 2025 that the Claimant had unlawfully joined Posta Rangers FC while still under contract with it, contrary to the Football Kenya Federation (FKF) and FIFA Rules governing the transfer of coaches. According to the Respondent even at the time of filing the response herein the Claimant was still reflected as its Head Coach in the FIFA Connect Portal and its letter dated 14th January 2025. In conclusion, the Respondent denies owing the Claimant any salary arrears or other employment dues, maintaining that all sums due were paid. It asserts that the Claimant voluntarily abandoned his employment and has therefore failed to establish a claim for constructive dismissal, unfair termination or breach of contract. Consequently, it prays for dismissal of the suit with costs. 4. By way of its counterclaim, the Respondent contends that the Claimant breached the employment contract dated 25th July 2024 by absconding duty, joining a rival club without complying with FKF and FIFA regulations, failing to issue the 14 days' notice of termination as per clause C of the contract and declining to attend a resolution meeting. It therefore seeks general damages for breach of contract together with costs of the counterclaim. 5. After close of hearing parties filed written submissions. Claimant's Submissions 1. The Claimant identifies the following issues for determination: * + 1. Whether there existed a valid contract of employment; 2. Whether the Respondent unlawfully terminated the Claimant's employment; 3. Whether the Claimant was constructively dismissed; 4. Whether the counterclaim is merited; and 5. Whether the Claimant is entitled to the reliefs sought. 2. On the first issue the Claimant submits that a valid contract existed with the Respondent. He highlights the Respondent's witness testimony that he worked diligently to save the Respondent from relegation. He further highlights the fact that he was engaged on a fixed term contract from 1st August 2024 to 1st August 2025. On the second issue, The Claimant submits that the Respondent fundamentally breached the employment contract by directing him not to travel for the Kariobangi Sharks match on 26th October 2024, excluding him from all official duties, ceasing communication, withholding his salary, replacing him with another coach and failing to subject him to any disciplinary process. He points out that the Respondent's witness admitted during cross-examination that no show cause letter, disciplinary hearing, termination notice or payment in lieu of notice was issued. Relying on **Muchina *&* another *v* Lopage PR Limited [2025] KEELRC 1129 (KLR)**, he submits that non-payment of salary and similar misconduct constitute a fundamental breach of an employment contract. He further invokes Article 41 of the Constitution and sections 45(1) and (2) of the Employment Act, arguing that the Respondent neither established a valid and fair reason for termination nor complied with procedural fairness. The Claimant cites **Walter Ogal Anuro *v* Teachers Service Commission [2013] eKLR** for the principle that a lawful termination must satisfy both substantive justification and procedural fairness. He also contends that the Respondent's allegations of poor performance cannot justify the termination since no performance appraisal or performance improvement process was undertaken. In support, he relies on **National Bank of Kenya *v* Samuel Nguru Mutonya [2019] KECA 404 (KLR)**, **Banking, Insurance and Finance Union (K) *v* KCB Bank (K) Ltd; Dishon Ochieng Achiro *&* 70 others (Interested Parties) [2019] KEELRC 2506 (KLR)**, and **Jane Wairimu Machira *v* Mugo Waweru *&* Associates [2012] eKLR**, which emphasize that poor performance must be established through an objective, participatory appraisal process before termination. 3. On the third issue, The Claimant submits that the Respondent's conduct amounted to constructive dismissal. He asserts that after excluding him from the team, removing him from official communication channels, assigning him no duties, withholding his salary and appointing another Head Coach, the Respondent rendered the employment relationship intolerable, leaving him with no option but to resign. He relies on **Coca-Cola East *&* Central Africa Ltd *v* Maria Kagai Ligaga [2015] eKLR**, where the Court of Appeal held that constructive dismissal arises where an employer's conduct is so unreasonable or constitutes such a fundamental breach of contract that the employee is entitled to resign. He also cites **Kiambi *v* Haco Tiger Brands (EA) Ltd [2023] KEELRC 3399 (KLR)**, which defines constructive dismissal as arising where an employer creates intolerable working conditions that leave an employee with no reasonable alternative but to resign. The Claimant submits that both the "unreasonableness" and "repudiatory breach" tests set out in **Coca-Cola** were satisfied. He maintains that his resignation merely formalized an employment relationship that the Respondent had already repudiated through its conduct. 4. On whether the counterclaim is merited, the Claimant submits that it is an afterthought and lacks evidential support. He contends that the Respondent failed to prove that he breached FKF or FIFA regulations, noting that its own witness admitted the Respondent controlled the FIFA Connect portal and could update coaching records. He further submits that there is no evidence he neglected his coaching duties or supervision responsibilities, observing that his performance had earned him an improved contract and salary increment. On the allegation of abscondment, the Claimant submits that he consistently sought instructions and payment from the Respondent and therefore had no intention of abandoning his employment. He relies on **Javan Kisoi Mulwa *v* SAA Interstate Traders (K) Ltd [2018] eKLR**, **James Okeyo *v* Maskant Flowers Ltd [2015] eKLR**, **Stanley Omwoyo Onchweri *v* BOM Nakuru YMCA Secondary School [2015] eKLR**, and **Albanus Mbithi Mutiso *v* Fresh Squeeze Ltd [2021] KEELRC 773 (KLR)** for the proposition that an employer alleging desertion must demonstrate both the employee's intention not to return to work and the efforts made to trace or require the employee to resume duty. He contends that the Respondent discharged neither obligation. The Claimant also submits that, having been constructively dismissed, he was entitled to resign without notice. In support, he cites **Odhiambo *v* Hisa Technologies Ltd [2025] KEELRC 3451 (KLR)**, where the Court held that an employee may leave without notice where the employer fundamentally breaches the employment contract. He further asserts that the alleged resolution meeting convened after his resignation was merely an attempt to regularize an already flawed process. 5. On entitlement to the reliefs sought the Claimant submits that, having established unfair termination through constructive dismissal, he is entitled to compensation under sections 49 and 50 of the Employment Act, salary in lieu of notice, salary arrears and unpaid house allowance. Regarding house allowance, he argues that the Respondent failed to prove that his salary was consolidated. He relies on **Trevar Marambe *v* For You Chinese Restaurant [2021] eKLR**, where the Court held that an employer bears the burden of proving that house allowance formed part of a consolidated salary. He further submits that the Respondent failed to prove payment of the pleaded salary arrears and therefore urges the Court to grant all the reliefs sought in the Memorandum of Claim and dismiss the counterclaim with costs. Respondent's Submissions 1. The Respondent on its part identifies the following issues for determination: * + 1. Whether the suit is premised on a non-existent contract of employment; 2. Whether the Claimant's employment was terminated by the Respondent; 3. Whether the Respondent is entitled to the Reliefs sought; and 4. Who should bear costs of the appeal. 2. On the first issue, the Respondent submits that the Claim is founded on a non-existent contract of employment dated 1st August 2024 and is therefore incompetent and bad in law. It contends that the Claimant failed to prove the existence of the alleged contract as required under section 107 of the Evidence Act and urges the Court to dismiss the suit on that basis. On whether the Respondent's employment was terminated, the Respondent maintains that the Claimant absconded duty after failing to report for the Kariobangi Sharks match on 26th October 2024 and subsequently joined Posta Rangers FC in breach of his contractual obligations and the applicable FKF and FIFA regulations governing the transfer of coaches. The Respondent relies on the evidence of its Secretary General, Elizaphan Kerama, and the documentary evidence produced at trial to demonstrate that it attempted to contact the Claimant and invited him to meetings after his absence, but he ignored the invitations. It asserts that the letters produced as exhibits establish that it took reasonable steps to trace the Claimant and require him to resume duty. The Respondent further submits that, under section 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee. It relies on **Geoffrey Nyabut Onguko *v* Adix Plastic Limited** **[2019] KEELRC 2599 (KLR)**, where the Court dismissed a claim for unfair termination after the employee failed to respond to disciplinary notices. It argues that an employee who ignores invitations to disciplinary proceedings cannot subsequently complain of procedural unfairness. The Respondent also cites **Central Furniture Shop Limited *v* Mohamed (Appeal E097 of 2023) [2025] KEELRC 199 (KLR)**, which adopted the reasoning in **Ayub Kombe Ziro *v* Umoja Rubber Products Limited [2022] KEELRC 141 (KLR)**, for the proposition that an employer alleging abscondment must demonstrate that it took reasonable steps to trace the employee and require him to resume work. It submits that this obligation was fully discharged through its correspondence inviting the Claimant back to work. According to the Respondent, the Claimant voluntarily abandoned his employment, joined a rival club without complying with FKF and FIFA regulations, and only tendered a resignation after relocating to Posta Rangers FC. It maintains that it consistently regarded him as its Head Coach, as evidenced by its letter dated 14th January 2025 and the FIFA Connect portal. 3. On entitlement to the reliefs sought, the Respondent submits that the Claimant is not entitled to any of the reliefs sought. It asserts that there was no breach of contract or constructive dismissal on its part and that the evidence instead demonstrates that the Claimant breached the employment contract by abandoning his duties. On the claim for constructive dismissal, the Respondent relies on **Coca-Cola East *&* Central Africa Limited *v* Maria Kagai Ligaga [2015] KECA 394 (KLR)** and submits that the Claimant failed to establish the essential elements of constructive dismissal, namely a fundamental breach of contract by the employer, conduct evincing an intention not to be bound by the contract, and a causal link between that conduct and the resignation. The Respondent further contends that there was no termination of employment, maintaining that the Club had not appointed a substantive replacement for the Claimant and continued to regard him as its Head Coach. Consequently, it submits that the claims for compensation, notice pay, salary arrears and house allowance lack evidential and legal foundation. Regarding damages for unfair termination, the Respondent relies on **Francis Nyongesa Kweyu *v* Eldoret Water and Sanitation Company Limited [2017] eKLR**, where the Court declined to award compensation after finding that the employee's own conduct had fundamentally undermined the employment relationship. It also contends that the Claimant suffered no loss of income since he immediately secured employment with Posta Rangers FC. 4. On the counterclaim, the Respondent submits that it is merited. It asserts that the Claimant breached the employment contract dated 25th July 2024 by absconding duty, joining Posta Rangers FC without complying with FKF and FIFA regulations, failing to issue the contractual notice of termination and ignoring invitations to attend a resolution meeting. The Respondent further submits that the Claimant's departure adversely affected the Club's operations and reputation, including its sponsorship arrangements, and compelled it to incur additional expenditure by assigning coaching responsibilities to its assistant coaches. Relying on **Mary Mutanu Mwendwa *v* Ayuda Ninos De Africa-Kenya (Anidan K) [2013] eKLR**, it submits that this Court has jurisdiction to award damages for breach of an employment contract. It therefore urges the Court to award it general damages for breach of contract, proposing an award of Kshs. 1,000,000/-, together with costs of the counterclaim. 5. On costs the Respondent submits that costs follow the event and prays that the Claim be dismissed with costs, while the counterclaim be allowed with costs. Disposition 1. The Claimant herein was a football coach. He was suspended from his position on 24th October 2024. This was after preparing the team for an away match against Kariobangi Sharks. The match was to be played in Nairobi and being an away match, he was required to travel with the Team. He was however instructed via WhatsApp by the Respondent's Secretary not to travel with the Team. The Claimant was assured that he would resume his duties thereafter. The Respondent subsequently ceased communication with the Claimant and excluded him from the team's activities. At the match against Kariobangi Sharks, the Respondent had appointed another coach in his place. This position subsisted for over 5 months and in my considered view, this in my considered view amounted to the constructive and unfair terminated of the Claimant's employment without notice, reasons or a disciplinary hearing as contemplated under the law. The classic definition of constructive dismissal is where termination arises by the hand of the worker as arising out of the conduct of an employer who creates intolerable working conditions that leave the worker with no reasonable alternative but to resign. The **Coca-Cola East *&* Central Africa Limited *v* Maria Kagai Ligaga** (*supra*) case highlighted the existence of the "unreasonableness" and "repudiatory breach" tests which are to be satisfied in order to find there was constructive dismissal. 2. The unreasonableness test is satisfied as the Claimant had no option but to look for alternative work. He could not sit by and wait for month after month awaiting a call up by the Respondent's Secretary who showed scant regard to due process. The Respondent's conduct was proof there was repudiatory breach as non-payment of salary combined with repeated refusal to deploy a worker satisfies the repudiation of contract aspect in the case before me. There was clearly an intention by the Respondent not to be bound by the contract. I have found there was a causal link between the Respondent's conduct and the Claimant's resignation. The "unreasonableness" and "repudiatory breach" tests set out in **Coca-Cola** were satisfied in this case before me. The Claimant's resignation merely formalized an employment relationship that the Respondent had already repudiated through its conduct. 3. The Respondent asserts the Claimant was still reflected as its Head Coach in the FIFA Connect Portal and its letter dated 14th January 2025 was proof of this. The counter to this is that the Respondent is the one that controls the FIFA Connect portal. The Claimant cannot update his details and only the Respondent can. The Football Kenya Federation (FKF) and FIFA Rules governing the transfer of coaches seems to have been negatively impacted as the Claimant appeared as a coach for a rival team a few months after his removal from the team travelling for the away match against Kariobangi Sharks in Nairobi. The Respondent in its counterclaim made heavy weather of the FIFA Connect portal yet it is the one that controls it. Was it untidy for the Claimant to appear for a rival team when still connected to the Respondent vide the portal? Yes. This was not proper as the conduct of the Club could have resulted in the blacklisting of FKF and generally make Kenya look bad. The Claimant was a good coach from the gains made by Shabana FC under his stewardship. It is beyond me why the Respondent's Secretary decided to push away a successful coach who had played for Kenya in its glory days. 4. The Court finds the Counter Claim not to be merited as the Respondent had all the cards and chose to instead to sit pretty and wait for the Claimant to be either banned or otherwise ostracised for appearing for other teams when he was "officially" connected to the Respondent. The counterclaim is dismissed with no order as to costs. 5. The Claimant was successful in showing he was dismissed without cause and that the constructive dismissal meted out to him was as a result of the Respondent's refusal to assign him coaching duties after the claim that there would be tension or fracas if he was to accompany Shabana FC in its match against Kariobangi Sharks. What remedies are available to the Claimant? He asserted for the months he remained in limbo, he was not paid his salary or allowances. The Respondent did not avail any proof that all the arrears were cleared. As employer it had a duty to show that it paid the Claimant any salary in the period of hiatus which he had not received. 6. The Claimant was forced to look for alternative sources of income and what could he fall back on? His skills as a soccer player and coach. He thus would be entitled to recover the salary that was not paid as well as compensation. The Respondent treated a successful coach, arguably one of the most successful coaches of Shabana FC in the modern-day era poorly. He deserved a more humane approach than being housed out of the team bus for the Kariobangi Shark During his heyday, the Respondent was rising in the league. He suffered reputational damage when for months he had no job and had no comebacks to those who may have asked why he was not coaching Shabana FC. Coaching a local soccer team is one that leads to a lot of talk on various for a and it was therefore incompatible with good order for the Respondent to retain the Claimant on its FIFA Connect portal as the head coach of Shabana FC yet in reality it had assigned others the role of head coach. By effectively barring his lawful transfer or registration as a coach for say Posta Ranger, the Respondent denied the Claimant a chance at a livelihood. For that reason, 12 months salary compensation would have been granted. The Claimant however, sought 10 months salary which is in my view sufficient recompense to him. 7. In the final result I find in favour of the Claimant and enter judgment for the Claimant against the Respondent for: 1. Kshs. 1,600,000/- being 10 months' compensation for constructive, unfair and unlawful termination of employment; 2. Kshs. 160,000/- being 1 months' salary in lieu of notice; 3. Kshs. 318,000/- being unpaid house allowance; 4. Kshs. 75,000/- being salary arrears for the month of June 2023; 5. Kshs. 85,000/- being salary arrears for September 2024; 6. Costs of the suit 7. Interest at court rates on the sums in (a), (b), (c), (d) and (e) above from the date of judgment till payment in full. It is so ordered. **Dated and delivered at Kisii this 27th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**