Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause (not stated in judgment)· [2014] KEELRC 856 (KLR)

Eric Mungatana v Rinse Fennema & another [2014] KEELRC 856 (KLR)

Employment and Labour Relations Court
14 March 2014
RSRadido Stephen
1,860 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed an employer who withholds wages forces employees out and must pay compensation, unpaid salaries, notice pay and leave.

What this practically means

#

Executive summary

#
The claimant was employed by the respondent in February 2007 as a Safari Manager/Tour Guide on successive one-year contracts, the last running from 12 February 2011 to 12 February 2012 with a basic monthly salary of Kshs 17,966 and a clause requiring one month's notice or pay in lieu. The relationship broke down in September/November 2011 when the respondent stopped paying his wages; the claimant was also arrested on allegations of failing to remit monies, later shown to have been banked. He sued for unfair termination, unpaid salaries, pay in lieu of notice and accrued leave. The respondent, despite being served and having notice of the hearing, failed to comply with filing directions, and its advocate absented herself after an adjournment application was refused; the cause proceeded undefended. The court found the withholding of wages for September and October 2011 to be a fundamental breach entitling the claimant to treat himself as constructively dismissed, applying Western Excavating v Sharp and Adams v Charles Zub Associates. The respondent failed to discharge its burden under sections 43, 45 and 47 of the Employment Act to prove valid and fair reasons for termination, and even a deserting employee would be entitled to a hearing. The court awarded six months' compensation (Kshs 121,692) rather than the twelve months sought, given the fixed-term contract had about six months to run and renewal was not automatic, plus unpaid wages of Kshs 40,564, one month's pay in lieu of notice (Kshs 18,485), outstanding leave (Kshs 36,970) and costs of Kshs 20,000, totalling Kshs 227,711.

Key legal issues

#
01

Whether the claimant was constructively dismissed

Holding

Failure to pay wages for two months was a significant breach going to the root of the contract, entitling the claimant to treat himself as dismissed

Reasoning

The Respondents admitted withholding wages for September and October 2011, claiming it was to make the claimant return to explain. The court held payment of wages is a fundamental term of the contract; withholding it showed the employer no longer intended to be bound by an essential term. The claimant was therefore entitled to consider himself dismissed, and the court applied the English constructive dismissal principles as sound under Kenyan law.

p. 3
02

Whether the termination was unfair

Holding

The termination was unfair because the claimant was not given reasons or a hearing, and the employer failed to prove desertion or misappropriation

Reasoning

Sections 43, 45 and 47 of the Employment Act require the employer to prove valid and fair reasons for termination. The Respondents' Response was a mere denial with strict proof. They failed to prove desertion or failure to remit monies, and even a deserting employee is entitled to a hearing. The Respondents did not suggest any hearing was given.

p. 3
03

What remedies are appropriate

Holding

Six months' compensation, unpaid wages, pay in lieu of notice and outstanding leave were awarded

Reasoning

Section 49(1)(c) permits up to twelve months' gross wages; the court awarded six months considering the fixed-term contract had about six months to run and renewal was not automatic. Unpaid wages were assessed at Kshs 40,564 as unchallenged testimony; one month's pay in lieu of notice followed the contract and section 35; outstanding leave was awarded under section 28 and section 10(3) and (7) since employees do not ordinarily keep records.

p. 4

Legal principles established

#
  • An employee is entitled to treat himself as constructively dismissed where the employer is guilty of a significant breach going to the root of the contract of employment
  • An employer relying on mere denials and putting a claimant to strict proof fails to discharge its burden under the Employment Act
  • Even an employee who deserts duty is entitled to a hearing before termination

Court orders

#
  1. 1.Award of six months' gross wages compensation of Kshs 121,692
  2. 2.Payment of unpaid wages for September/October 2011 of Kshs 40,564
  3. 3.One month pay in lieu of notice of Kshs 18,485
  4. 4.Outstanding leave of Kshs 36,970
  5. 5.Costs of Kshs 20,000 assessed against the Respondents
  6. 6.Total award of Kshs 227,711

Authorities

#

Legislation

  • Employment Act, 2007Sections 17 and 18
  • Employment Act, 2007Sections 43, 45 and 47
  • Employment Act, 2007Section 49(1)(c) and 49(4)
  • Employment Act, 2007Section 35
  • Employment Act, 2007Section 28 and Section 10(3) and (7)

Cases cited (2)

  • Western Excavating (ECC) Ltd v Sharp
    (1978) IRLR 27
  • Adams v Charles Zub Associates Ltd
    (1978) IRLR 551
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade dispute (Employment Act, 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Eric Mungatana v Rinse Fennema & another [2014] KEELRC 856 (KLR)", Case Analysis (2014). Cause (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/856/eng@2014-03-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.