https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1548

Kivungi v Athichem Modern Medical Centre Ltd (Appeal E051 of 2025) [2026] KEELRC 1548 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1548 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Appeal E051 of 2025 JW Keli, J June 3, 2026 Between Peter Kimeu Kivungi Appellant and Athichem Modern Medical Centre Limited Respondent (Being an Appeal from the Judgment and Decree of the Hon. B. Ojoo (CM) delivered on 29th September 2025 in Mavoko MCELRC No. E193 of 2024) Judgment 1.The Appellants herein, being dissatisfied with the Judgment and Decree of the Hon. B. Ojoo (SPM) delivered on 29th September 2025 in Mavoko MCELRC No. E193 of 2024 between the parties filed a Memorandum of Appeal dated 15th October 2025 seeking the following orders: -a.The Appeal be allowed.b.The judgment of the trial magistrate court delivered on 29th September and the consequential orders be set aside.c.The court be pleased to find that the Appellant proved his case to the required standards and grant the reliefs sought in the MCELRC.d.That the Appellant be granted costs of this appeal. Grounds Of The Appeal 2.The Honourable Magistrate erred in law and in fact by ignoring the Appellant's submissions thus arriving at a wrong conclusion that the Appellant deserted duties. 3.The Honourable Magistrate erred in law and fact by finding that the letter dated l9th July 2024 did not form part of the pleadings by the Respondent thus ignoring it in her final finding that the Appellant had not proved his case. 4.The Honourable Magistrate erred in law and fact by failing to appreciate that the Respondent constructively dismissed the Appellant. 5.The Honourable Magistrate erred in law and fact by failing to appreciate that the Respondent unlawfully terminated the employment of the Appellant. Background To The Appeal 6.The Claimant/Appellant filed a claim against the Respondent vide a statement of claim dated the 9th of September 2024 seeking the following orders: -a.A Declaration that the Respondent constructively and unlawfully terminated his employment.b.General Damages for unlawful termination up to twelve months.c.Punitive damages for unlawful termination.d.Accrued salary arrears in the sum of Kshs. 80,000/-e.Unpaid leave days in the sum of Kshs. 40,000/-f.Payment in lieu of notice in the sum of Kshs. 40,000/-g.Gratuity for one-year period being the sum of Kshs. 40,000/-h.Refund of Kshs. 650 for conducting the search.i.An order directing the Respondent to remit all statutory deductions for the employment period of the Claimant to the relevant government agencies.j.Costs and interests of this suit.k.Any other and or further relief this Honourable Court deems fit and just to grant.(pages 3-6 of Appellants’ ROA dated 28th November 2025) 7.The Appellant filed his list of witnesses dated 9th September 2024; witness statement of even date; and list of documents of even date with the bundle of documents attached (pages 8-26 of ROA). 8.The Respondent entered an appearance and filed a statement of response dated 26th September 2024 (pages 27-29 of ROA). In support of their response, the Respondent also filed their list of witnesses dated 1st March 2024; witness statement of Venson Kioko Mutuku of even date; and list of documents of even date with the bundle of documents attached (pages 30-39 of ROA). 9.The Appellant’s case was heard on 24th July 2025, with the Claimant/Appellant relying on his filed witness statement as his evidence in chief, and producing his documents as exhibits, except for documents no. 3 on the Claimant’s list of documents, whose production was objected to. He was cross-examined by counsel for the Respondent, Mr. Kimanzi (proceedings at pages 78-82 of ROA). 10.The Respondent’s case was heard on the same day, with Venson Kioko Mutuku testifying on behalf of the Respondent as DW1. He relied on his filed witness statement, produced the Respondent’s documents as exhibits and was cross-examined by counsel for the Claimant/Appellant Mr. Nyengenye (pages 82-85 of ROA). 11.Following the hearing, the trial court gave directions on filing submissions and the parties complied. 12.The Trial Magistrate Court delivered its judgment on the 28th of September 2025 partially allowing the Claimant’s claim to the tune of Kshs. 67,000/- comprised of unpaid salary for November 2023; and unremitted statutory deductions, with an order that each party bears their own costs (judgment on pages 70-74 of ROA). Determination 13.The appeal was canvassed through written submissions. Both parties filed. Issues for determination 14.In his submissions dated 15th April 2026, the Appellant identified the following issues for determination:-i.Whether the learned Magistrate erred in law and fact by finding that the Appellant deserted duties.ii.Whether the learned Magistrate erred in law and fact by finding that the letter dated 19th July 2024 did not form part of the pleadings by the Respondent thus ignoring it in her final finding that the Appellant had not proved his case.iii.Whether the learned Magistrate erred in law and in fact by failing to appreciate that the Respondent constructively dismissed the Appellant.iv.Whether the learned Magistrate erred in law and fact by failing to appreciate that the Respondent unlawfully terminated the employment of the Appellant. 15.Conversely, the Respondent identified the following single issue for determination in their submissions dated 4th May 2026:-i.Whether the learned Magistrate erred in law and in fact by failing to appreciate that the Appellant was constructively dismissed and/or unlawfully terminated by the Respondent. 16.The court, on perusal of the issues raised by the parties, was of the considered opinion the issues placed by the parties before the court for determination in the appeal were-a.Whether the learned Magistrate erred in law and in fact by failing to appreciate that the Appellant was constructively dismissed and/or unlawfully terminated by the Respondent.b.Whether the appeal was meritedWhether the learned Magistrate erred in law and in fact by failing to appreciate that the Appellant was constructively dismissed and/or unlawfully terminated by the Respondent. The appellant’s submissions 17.Whether the learned Magistrate erred in law and fact by finding that the Appellant deserted duties- The court in the case of Felistas Acheha Ikatwa v Charles Peter Otienо [2018] KEELRC 2491 (KLR) discussed desertion at length. The court quoted the Black's Law Dictionary (Ninth Edition) which defines desertion as the willful and unjustified abandonment of a person's duties or obligations. The court in Felistas Acheha Case (supra) further stated the following- "The law is therefore settled that an employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee to resume duty. At the very least, the employer is expected to issue a notice to the deserting employee that termination of employment on the ground of desertion is being considered". (Emphasis ours) The Respondent told the trial court that the leave application by the Appellant was approved and it is after the alleged leave that the Appellant did not go back to work. It should however be noted that it is the Appellant's claim that his leave request was not approved. There are notable differences in the Leave Applications produced by both the Appellant and the Respondent. The Appellant invites this Honourable court to have a look at the two documents. (Page 22 and Page 39 of the Record of Appeal) The differences highlighted are as follows: i. The Respondent's stamp on the Appellant's leave application is not dated nor signed. On the other hand, the Respondent's leave application is dated and signed. The Appellant's leave application does not bear the word 'approved'. On the other hand, the one by the Respondent bear the word 'approved'. iii. The Appellant's leave application is not filled on the leave days balance section but the Respondent's leave application is filled. iv. On the end of the leave date section, the Appellant's leave application was first written 7th November, then the November is cancelled and December is written below it. On the Respondent's leave application, there is a direct entry of December. No word is cancelled. This is also a notable difference. The Appellant testified in the trial court that 2nd December 2023 was his off-day and therefore he was not at work. The trial court construed the off day to mean being on leave. However, the two are different and not synonymous. There are off days depending on how a company allocates duties in terms of shifts. The off days do not equate to leave. The Appellant was called by the HR and told not to go to work until he is called. This call was never made. It is our humble submission that the Appellant did not desert duties. No notice of intended termination was issued and therefore, the Respondent cannot claim that the Appellant deserted duties. It should also be noted that the Respondent's witness confirmed on cross-examination that they keep the day-to-day records of their employees but he could not produce them in court to confirm whether the Appellant was on leave at the period in question. He also could not produce in Court the daily attendance as signed by the employees of the Respondent every morning and evening as they report to work and as they leave work, respectively. The records could have confirmed that indeed the Appellant was not on leave during the period in question. 18.Whether the learned Magistrate erred in law and fact by finding that the letter dated 19th July 2024 did not form part of the pleadings by the Respondent thus ignoring it in her final finding that the Appellant had not proved his case. Section 23 (1) of the Evidence Act states that only admissions made on a without prejudice basis are excluded from being produced as evidence in civil cases. The court in the case of Kenya Commercial Bank Ltd v Specialized Engineering Company Ltd [1980] КЕНС 11 (KLR) stated as follows, "...the solicitor for a party has an implied general authority to compromise and settle the action and the party cannot avail himself of any limitation by him of the implied general authority to his solicitor, unless the limitation has been brought to the notice of the other side" Further to the above, the court in Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others [1995] KECA 140 (KLR) affirmed that acts of counsel within the scope of authority are attributable to the client. The correspondence by the Respondent's previous advocate starts by asserting authority and clearly states that the advocate is acting on the instructions of the Respondent. The advocate makes a clear reference to our demand letter dated 3rd. It is very clear that the advocate was acting under the Respondent's instructions, otherwise, she could not have known the details addressed under the said letter. The fact that there is a change of advocates does not negate or invalidate the earlier correspondence. (see page 24 of the Record of Appeal) The correspondence is not written under the express provision of without prejudice and therefore cannot be excluded from evidence under Section 23(1) of the evidence Act. The Learned Magistrate indicated that the letter was written by the advocate and not the Respondent. As illustrated above, it is settled law that a party is bound by the acts and representations of its advocate acting with authority. 20. It is our humble submission that the trial court misdirected itself in law by discounting material evidence on the erroneous basis that it emanated from counsel. iii. Whether the learned Magistrate erred in law and in fact by failing to appreciate that the Respondent constructively dismissed the Appellant. The court in the case of Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR) quoted the case of Western Excavating (ECCO Ltd. V Sharp [1978] QB 761 which articulated the authoritative meaning of constructive dismissal as follows: "If the employer is guilty of conduct which is a 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, 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 employer's conduct. He is constructively dismissed. The 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...) Calling an employee and telling them not to go to work until they're called back, and then failing to call them back, is a significant breach which shows that the employer no longer intends to be bound by the terms of the contract. The employer's conduct made it impossible for the Appellant to perform his duties which required an in-person attendance. That was sufficiently serious to entitle him to leave at once without giving a notice. The Appellant cannot be faulted for that. The correspondence from the Respondent's previous advocate confirms this position. According to the Respondent, the Appellant had already been dismissed however this dismissal had not been communicated to the Appellant. The Appellant could only infer it from the Respondent's conduct. iv. Whether the learned Magistrate erred in law and fact by failing to appreciate that the Respondent unlawfully terminated the employment of the Appellant. 19.The court in the case of Kenfreight (E.A.) Limited v Benson K. Nguti [2016] КЕCA 688 (KLR) stated that a termination of employment by an employer is unfair under section 45 of the Employment Act, if the employer fails to prove: (a) That the reason for termination is valid; (b) That the reason for termination is a fair reason - (c) (i) Related to the employee's conduct, capacity or compatibility; or (ii) Based on the operational requirements of the employer; and that the employment was terminated in accordance with fair procedures The court in Kenfreight case (supra) continued to state that termination of employment will be unfair if the court finds that in all the circumstances of the case, it is based on invalid reason or if the reason itself or the procedure of termination are themselves not fair. 26. The Appellant was never informed of any reason for termination. He was called by the HR and told not to go to work until he is called back. A call that was never forthcoming. He was told that he was under investigations, the nature of which was not revealed. He was never called for any disciplinary hearing. This shows that the termination was not in accordance with fair procedures. The unfair termination was admitted to by the Respondent through their previous advocate who they instructed to respond to our demand letter. In the correspondence, it is stated that the Appellant was summarily dismissed under section 44 of the Employment Act for gross misconduct. This is an acknowledgement by the Respondent that the Appellant was unfairly dismissed. The respondent’s submissions 20.Whether the learned magistrate erred in law and in fact by failing to appreciate that the appellant was constructively dismissed and/or unlawfully terminated by the respondent. The Honourable trial Court held as outlined below, a finding with which the Respondent fully concurs and which position shall hereunder be demonstrated: -I find and hold that the claimant deserted work with effect from 02.12.2023 and the employment relationship between the parties subsequently terminated upon lapse if the fixed-term contract. That the Record of Appeal contains a duly executed employment contract bearing the Appellant’s signature, the authenticity of which has never been disputed by the Appellant. The said contract, appearing at pages 35 to 38 of the Record of Appeal, clearly demonstrates that the Appellant was engaged on a fixed-term contract commencing on 1st January 2023 and set to lapse on 31st December 2023. Notably, the Appellant himself relied on the said contract in his submissions at page 41 of the Record of Appeal. In the premises, the existence of a fixed-term employment contract is not a matter in controversy before this Honourable Court. 8. Nevertheless, the Appellant’s claim was wholly predicated upon an alleged telephone conversation said to have taken place on 2nd December 2023, wherein one Ali Nzivo purportedly instructed the Appellant not to report to work pending investigations, with an assurance that he would subsequently be informed when to resume duty. The alleged communication to resume work was never forthcoming and, on that basis, the Appellant elected not to return to work, subsequently characterizing the circumstances as amounting to constructive dismissal. The Respondent, however, advances a wholly different account of events. It is the Respondent’s position that the Appellant applied for leave on 21st November 2023 to run until 7th December 2023, which leave was duly approved for a period of 14 days. Upon the lapse of the said leave period, the Appellant failed to resume duty and further became unreachable despite efforts by the Respondent to contact him following the expiry of his leave. That one fact remains undisputed before this Honourable Court: The Appellant was not at his workplace on the alleged date of 2nd December 2023. Whereas the Respondent’s position is that the Appellant was on approved leave, the Appellant himself contends that the said date fell on his off day. Even adopting the Appellant’s own version of events, the allegation attributed to the Respondent’s Human Resource office is wholly implausible, as it would defy logic for an employee to be instructed not to report to work on a day when he was, by his own admission, not scheduled to be on duty in the first place. At this stage, it is imperative to invoke the provisions of Section 107 of the Evidence Act, which provides that: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The Appellant’s decision not to resume duty is anchored solely on an alleged telephone conversation, which, beyond his own assertion, is not supported by any documentary or electronic evidence on record, including call data or telephone records. Up until this point, it is evident that the Appellant has failed to discharge the burden placed upon him under Section 107 of the Evidence Act. Save for his bare assertions, there is no cogent evidence placed before this Honourable Court to prove that the alleged telephone conversation ever took place or that the Respondent communicated any intention terminating his employment or even any investigations for that matter. The Appellant’s claim therefore remains unsupported, speculative, and incapable of sustaining the serious allegations of constructive dismissal levelled against the Respondent. On the other hand, there exists on record an approved leave application form, appearing at page 39 of the Record of Appeal, which confirms that the Appellant duly proceeded on authorized leave, to which he did not return. 21.It is not lost to this Honourable Court that the Appellant himself admits to having applied for the said leave. However, the Appellant advances the notion that he was entitled to notice of intended termination even in the circumstances of alleged desertion. That position is untenable in law. It is pertinent to note that the Appellant was serving under a fixed-term contract, which by its very nature was set to terminate upon effluxion of time on 31st December 2023.This position was affirmed in the case of Kenya Union Of Commercial, Food And Allied Workers Union V Heet Supplies Limited & Another [2026] KEELRC 475 (KLR) where the Honourable Court stated that: It is a well-established principle that a fixed-term contract ordinarily terminates automatically at the end of the agreed period unless there is an express renewal or evidence creating a legitimate expectation of renewal. [Emphasis Supplied] Moreover, it is also the Appellant’s own assertion that, following the alleged telephone conversation, he never returned to his place of work. With respect, it is only reasonable and consistent with ordinary employment practice that, in the absence of a follow up communication, an employee would make enquiries at the workplace to clarify his status. However, the Appellant admits that he took no such steps and did not report back to work at all. Instead, he merely alleges that he interpreted the absence of a return call as a ‘sign’ and, on that basis, elected not to resume duty. It is pertinent to note that the Respondent made several attempts within the month of December to reach the Appellant, albeit without success. Despite these efforts, the Appellant remained unreachable. In any event, the employment relationship was governed by a fixed-term contract which, by its express terms, came to an end on 31st December 2023 upon effluxion of time. Nevertheless, the Appellant places undue reliance on an alleged reply to demand letter purportedly issued by advocates said to have been instructed by the Respondent which raises the claim that the Respondent summarily dismissed the Appellant. 22.The Respondent has been categorical in its Witness Statement that it never instructed the said advocates of the same, and therefore any such correspondence cannot be attributed to or bind the Respondent. Reliance is placed in the case of Ochieng Onyango And Kibet & Ohaga Advocates V Akiba Bank Limited [2008] 1 EA 380, where the court held that; It is the position of the law that if there is no evidence of a retainer except the oral statements of the advocates which is contradicted by the client, the Court will treat the advocate as having acted without authority/permission…..the burden of proof to establish the retainer is always on the shoulders of the advocates. And more weight will be given to the contention of the client that he did not instruct the Advocate to act for him. I hasten to add that the yard stick for such proof is not beyond reasonable doubt. In fact, it is in the normal parameters of balance of probability. [Emphasis Supplied] Further reliance is placed on the case of Omulele & Tollo Advocates V Mount Holdings Limited [2016] KECA 523 (KLR), where the Court of Appeal held that: - A retainer need not be written, it can be oral and can even be inferred from the conduct of the parties. However, if there is no evidence of retainer, except a statement from the advocate, which a client contradicts, the court will treat the advocate as having acted without authority from the client. [Emphasis Supplied] In the premises, the alleged reply to demand letter relied upon by the Claimant is wholly devoid of any probative value, and the Claimant cannot seek to attribute liability, admission, or acknowledgment to the Respondent on the basis of correspondence whose authorship, authority, and instructions have been expressly disowned by the Respondent. 28. Indeed, the record itself speaks volumes, as there is a clear change of advocates on record demonstrating that the said advocates were strangers to the Respondent’s instructions. The law cannot permit a party to be bound by the unsolicited pen of an advocate acting without proper instructions or lawful authority from the client. Nevertheless, the Appellant seeks to treat the said correspondence as though it constitutes admissions in the pleadings of the Respondent. With respect, Your Ladyship, such an approach is misconceived, as the Respondent has expressly disowned any instructions to the said advocates and the impugned correspondence cannot, in law, be elevated to the status of binding pleadings or admissions against the Respondent. 30. In any event, the Respondent neither relied upon nor adopted the said correspondence as part of its pleadings, and the same cannot therefore be used to bind the Respondent, as was correctly found by the Honourable Trial Magistrate. In the foregoing, this is plainly a case of an employee who voluntarily deserted his workstation, only to later return to Court in an attempt to harvest remedies from an employment relationship he himself abandoned. It is respectfully our submission that equity cannot aid a party who walks away from his contractual obligations and thereafter seeks to benefit from his own inaction. DECISION 23.This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 24.The grounds of appeal were -a.The Honourable Magistrate erred in law and in fact by ignoring the Appellant's submissions thus arriving at a wrong conclusion that the Appellant deserted duties.b.The Honourable Magistrate erred in law and fact by finding that the letter dated l9th July 2024 did not form part of the pleadings by the Respondent thus ignoring it in her final finding that the Appellant had not proved his case.c.The Honourable Magistrate erred in law and fact by failing to appreciate that the Respondent constructively dismissed the Appellant.d.The Honourable Magistrate erred in law and fact by failing to appreciate that the Respondent unlawfully terminated the employment of the Appellant. 25.The appellant pleaded in his claim that –‘The Claimant avers that on 2nd December 2023, he received a call from the Respondent's Human Resource Manager one, Ali Nzivo who asked him not to report to work because there were investigations ongoing at his workplace about him and that he should wait for them to call him and inform him when to come back to work. The Claimant avers that seven days later, he followed back by calling the Respondent' Human Resource Manager, Ali Nzivo, he was informed that he should not come back to work until he is called and the matter was being handled with the company directors. 7. The Claimant avers that during his employment, the Respondent reduced his monthly pay from Kshs.45,000/= to Kshs.40,000/= without any consultation. The Claimant avers that by informing him not to report to work until he is called back, the-10 Respondent expressly or constructively terminated his employment and this was unfair, unlawfully and a violation of his employment rights’. (page 4 of ROA was the statement of claim) 26.In response the Respondent stated-‘ In response to the contents of paragraphs 5 and 6 of the Statement of Claim, the Respondent avers that no such calls were ever made to the Claimant and he shall be put to strict proof of the same at the hearing of the claim. In further response to paragraphs 5 and 6 of the Statement of Claim, the Respondent avers that on date of the alleged calls, the Claimant was on leave and was expected to report back to work on the 6th of December 2024 as per the leave application form which had been duly approved. The Respondent shall table its evidence to this effect.’( page 28 of ROA). Also in the witness statement of respondent’s witness statement, it was stated- ‘That indeed the Respondent employed the Claimant on a one (1) year contract which was to run from 1 January 2023 to 31t December 2023. That on 20th of November 2023, the Claimant applied for a 14 days leave which was to commence on 21 November 2023 up to 7 December 2023 as per the application. Notably, the application for leave was granted and he proceeded to go on leave. That having proceeded on a 14 days leave from the 21st November 2023, the Claimant was expected to report back to work on the 6tt of December 2023. That after the conclusion of the leave, the Claimant did not report to work and the Respondent was unable to trace him. That the allegation that the Claimant was called and asked not to report to work is false, baseless and unfounded. Contrary to his assertion, he had voluntarily gone on leave.(page 32 of ROA) The leave application form and approval was produced by the respondent for the period 21st November to 7th December 2023 (page 39 of ROA). 27.The trial court held as follows- ‘[12] The Claimant averred in his evidence that on 02.12.2023 while he was off-duty, the Respondent's Human Resource Manager Mr. Ali, called him and informed him that he was not required to report back to work until he hears from the company to resume work. From the evidence of the claimant he was not furnished with any reasons or explanation and from there he did not return to work and the respondent has not paid his dues which is typically unfair termination. On its part the Respondent argued that they did not terminate the claimant. That the claimant failed to return to work after his leave ended and effectively abandoned work and after that the contract lapsed at the end of December 2013. The claimant stated that on 20.11.2023 he applied for his annual leave but the same was declined which the respondent denied. The claimant adduced in court the Leave Application he tendered (P. Exh. 6) to the HR Officer with no remarks. The respondent also produced the same Leave Application with the remark of "Approved" initialed on its face denoting the approval by the HR Officer Mr. Ali (D. Exh. 2). According to the claimant the variation in the two documents was not by coincidence and the Respondent’s document (D. Exh. 2) was altered so as to further the narrative that the Claimant"...''s application for leave was allowed. The respondent, as the employer, was expected to keep the correct employee records which they have produced. The claimant did not deny that he tendered the application to the HR office, which duly-received it and stamped his copy and the Leave was subsequently approved.30 [14] Further, the Claimant averred that he was called by Mr. Ali on 02.12.2023 and told not to go to work and he was effectively unprocedurally, unlawfully and unfairly orally dismissed constructively. During cross-examination the Claimant admitted that he could not adduce any evidence of the communication and he did not go back to work after that. In my view, the claimant's own admission that he was off-duty at that time is critical and is evidence that dovetails with the respondent's evidence that he was on leave. His claim about an alleged call by Mr. Ali was an attempt to cover himself. There is nothing to show that he returned or attempted to return after his leave ended up until 03.07.2024 when the respondent was served with the demand letter. [15] The Claimant has urged the court to consider the Respondent's response to his Claimants advocate's demand letter which stipulated that the Claimant was summarily dismissed from work after being given several warning letters which claim was abandoned by them in court. That this was another narrative woven by the respondent to disparage him when they had acted outside the law as DW1 could not explain to the court why the Respondent did not take any action against the Claimant whom they claimed had deserted, they did not file a counterclaim for breach of the contract. I read the said letters. It is the view of the court however that the respondent's said statement(s) in the response to the demand letter did not constitute pleadings and the party cannot be bound by them. The response was crafted by respondent's counsel. [16] From the foregoing, the question that begs is whether was constructively and unfairly terminated. The Claimant urged that the Respondent unlawfully terminated the employment by constructively dismissing him by frustrating him. Reliance was placed on the case of Coca Cola East and Central Africa Limited vs Maria Kogai Ligaga [2015] eKLR in which the Court of Appeal developed the test to determine constructive dismissal and said; ".......The second interpretation is that the employer’s conduct is so grave that it constitutes breach of employment.... This is the contractual test."-10 [17] It is submitted by the Claimant's counsel that Respondent’s conduct towards the Claimant was so grave that it would logically be concluded that they constructively terminated the employment unlawful. That the Respondent did not want to work with Claimant; they started by frustrating him by reducing is salary from Kshs. 45,000/- to Kshs. 40,000/-. After this did not work out, they asked him to stay at home until he is called back and they never called him back to work. All facts considered, it is apparent to the court that the Claimant has not discharged his burden on a balance of probability to demonstrate his claim that the Respondent constructively and unlawfully terminated his employment by frustrating him. The claimant failed to return to work where after the contract automatically lapsed end of December 2023. As for the salary, the same paid was as per the contract between the parties which provided that any salary adjustments were at the discretion of-20 the Company Directors. The court cannot re-write the contract for the parties.’ 28.During cross-examination before the trial court, the appellant stated as follows- ‘My first contract was from January 2022 up to December 2022. The contract was renewed on 01/01/2023. I was called on 02/12/2024 and told not to report to work. I was called by Mr. Ali Nzibo, acting Human Resource officer. I have not produced any phone record to confirm the call. I was called on phone by Mr. Ali on that date. I applied for leave but it was not granted. I applied for leave on 20/11/2023. I was on duty. On 02/12/2023 was my off - day when Ali called me (Referred to leave Application Form). The leave form is signed by the Human Resource officer. It is stamped. I do not have anything to show I was at work from 21/11/2023 to 02/12/2023. Respondent reduced my salary without any consultation. I complained about the reduction of salary. I have no record to show court. My statutory deductions were not remitted. I have not provided documentary proof of the same. I worked on 01/12/2023. I took my off - day on 02/12/2023. My claim is based on the contract with the employer which they breached. I was called and told not to go to work on 02/12/2023. I was to resume work but I did not report since I was told I would be called again. I did not go back to work. My contract did not provide for termination by phone call. I do not have any document to proof my employment in 2022.’In re-examination the appellant told the trial court-‘RE – EXAMINATION: I applied for leave on 20/11/2023. The request was not granted. I was to report to work on 03/12/2023 but following the call on 02/12/2023 I did not report to work. On 01/12/2023 I was at work. Mr. Ali called me on 02/12/2023 and told me not to go back to work due to some investigations. He said that he would call me back but he never did.’ 29.The respondent’s witness, Mutuku, was the said Director of the respondent. At cross-examination he told the trial court as follows- ‘Claimant was our employee. He was employed in January 2022 for 1 year renewal. In the year 2022 we had no major challenge. He had issues of absenteeism and lateness but it was addressed. The contract dated 01/01/2023 was for 1 year up to December 2023. On 20/11/2023 the claimant applied for leave. The same was approved for 14 days. The signature and stamp by the Human Resource indicate that it was approved. The form is titled "Leave application". We keep and maintain a leave register. We also keep a record in the employee's file. After the leave, the claimant failed to return. We tried to call him. The Human Resource officer called him, but he could not be reached. That was around 5th or 6h December 2023. He was called by Mr. Ali but his no. was not going through. I have not provided documentary proof that he was called. All staff sign in and out for work. I have not availed to court the staff sign- in record. We have the records and I gave it to my advocate. We had intended to reduce claimant's salary but he protested and we did not effect it. (Referred to P. Exhibit 3- Letter dated 14/07/2023). The claimant's salary was not reduced. He protested and we abandoned it. This can be confirmed from the bank statements to confirm payment of salary. I do not have documentary proof that the letter dated 14/07/2023 was revoked. The1 salary was not reduced. Claimant was not paid for the month of December 2023. He did not work for that month. The company maintains the staff records and files. I have not filed the staff sign - in records to confirm claimant did not work in December 2023. 4 Claimant's statutory deductions were remitted. I have not produced the records to court but I have them with me. Mr. Ali Nzibo was my Human Resource officer. He is no longer with us. He is not my witness in this case. Claimant absconded work. He was called and he never responded. He has also never come back to us. He was called on his last known contacts and he was non - responsive.’ 30.The burden to prove constructive dismissal is with the employee as per pronouncement in Ligaga v Coca cola East and Central Africa Limited [2011] KEIC 36 (KLR) where the trial court held as follows- ‘Common law, which has been embraced in our law through section 12 of the Labour Institutions Act Number 12 of 2007, treats constructive dismissal as a repudiatory breach by the employer of the contract of employment. The employer’s behaviour in either case must be shown to be so heinous, so intolerable, that it made it considerably difficult for the employee to continue working. The employee initiates the termination, believing herself, to have been fired. The employee needs to show that the employer, without reasonable or proper cause conducted himself in a manner likely to destroy or seriously damage the employment relationship. Resignation is regarded as constructive dismissal if the employer’s conduct is in significant breach of the contract of employment and that the conduct shows the employer is no longer interested in being bound by the terms of the contract. There is no practical difference in terms of effect, between the statutory and the common law concept on constructive dismissal; it is unlikely that an employer is in fundamental breach of the contract of employment, but all the same is found to have acted fairly. It is very unlikely that a common law breach occurs without amounting to a statutory wrong. The employee’s resignation is therefore treated as an actual dismissal by the employer, and the employee may claim compensation for unfair termination. This concept, like many concepts in labour law, is based on the recognition of the inequality of bargaining power in the employment relationship. If it did not exist, the danger would be that employers would simply force their employees to quit, and avoid paying any form of compensation. The onus of proof in this form of employment termination, unlike in other termination, lies with the employee. While under section 43 and 45 of the Employment Act 2007 the duty in showing that termination was fair is on the employer, constructive dismissal demands the employee demonstrates that his resignation was justified. Other collateral issues that must be shown by the employee are: that the employer made a fundamental change in the contract of employment, and that such change was unilateral; that the situation was so intolerable the employee was unable to continue working; that the employee would have continued working had the employer not created the intolerable work environment; and, that the employee resigned because he did not believe the employer would abandon the pattern of creating unacceptable work environment. These are some of the rules governing a claim for constructive dismissal.’ The decision was upheld by the Court of Appeal and is a leading authority on the doctrine of constructive dismissal application in Kenya. 31.In the instant case, the appellant simply said he was called and asked not to report to work on the 2nd December 2023. The respondent led evidence supported by a leave application, which the appellant admitted to having submitted, but stated it was not approved. At the same time, the appellant told the trial court that on the 2nd December 2023 that he was off duty and not at work. The leave form was produced before the court duly approved for 14 days, starting on 21st November and ending on 7th December 2023. The court found it was more probable than not that the appellant was on leave on the alleged date he said he was told not to return to work. The claimant had the burden to prove his claim of constructive dismissal. He did not produce evidence of the said call, in which he allegedly instructed him not to report back to work. The claim remains mere allegations. Conversely, the employer/respondent produced evidence of a leave application to prove the appellant was on leave on the date of alleged stoppage and failed to return. Unfortunately for the appellant, his contract ended in December 2023; thus, the employer had no obligation beyond that date. 32.I find no basis to interfere with the decision of the trial court as the decision was supported by documents produced by the respondent in the court of the leave form and bank statements. The court found the germane basis of the claim of constructive dismissal was the alleged call not to resume duty which was not proved to be true. In Mbogo V Shah [1968] EA Page 93 De Lestang V.P (As He Then Was) Observed At Page 94:“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’ The court holds that the grounds of appeal lack merit. The decision of the trial court is upheld in its entirety. The appeal is dismissed with costs to the respondent. 33.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 3RD DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoAppellant – Mogo h/b NyengenyeRespondent –Nanjala