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ELRCDismissedStatement of Claim dated 30th June 2015· [2019] KEELRC 1560 (KLR)

Jared Odawa Oluga v Bethany Village Africa [2019] KEELRC 1560 (KLR)

Employment and Labour Relations Court
27 May 2019
MOMAUREEN ONYANGO
435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee who goes unpaid for three years cannot later claim wages for that period, because the court treats non-payment as ending the job.

What this practically means

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Executive summary

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The claimant, Jared Odawa Oluga, sued his former employer, an NGO registered under the Non-Governmental Organisation and Coordination Act Cap 134, claiming he was employed as a Driver from 16th February 2012 on a monthly salary of Kshs.35,000, with an alternative agreement that he retain motor vehicle KAY 562Y after two years. He alleged the respondent failed to pay his wages and repossessed the vehicle, and prayed for Kshs.1,600,000 in accrued wages, costs and interest. The respondent neither filed a defence nor attended the hearing on 25th September 2018, so the claim proceeded undefended. The claimant testified that he was not paid for three years while the respondent's Director was in America, surviving on tips. He produced an employment contract dated 16th February 2012 for a three-year term, signed by him, the Operations Manager and the Director. The court held that the claimant failed to explain whether he was working, for whom, or who paid the tips during the Director's absence. It reasoned that an employee unpaid for three years cannot claim to be in employment for that period, as non-payment of salary is a fundamental breach that would frustrate and terminate the contract. Finding that the claimant had not proved he worked during or was owed salary for the three years claimed, the court dismissed the claim with no orders for costs, on 27th May 2019 at Nairobi.

Key legal issues

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01

Whether an employee can claim wages for three years during which no salary was paid

Holding

The claim fails; the claimant did not prove continued employment or entitlement to salary for the three-year period

Reasoning

The claimant did not testify that he was working or for whom during the period the Director was away, nor who paid the tips he survived on. The court held that an employee unpaid for three years cannot claim to be in employment for that period, as non-payment of salary is a fundamental breach which would frustrate the contract and bring it to an end. The claimant therefore failed to discharge the burden of proving the claim.

p. 2

Legal principles established

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  • Non-payment of salary is a fundamental breach that frustrates and brings a contract of employment to an end

Court orders

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  1. 1.Claim dismissed with no orders for costs

Authorities

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Legislation

  • Non-Governmental Organisation and Coordination ActCap 134
Jurisdiction invoked
Employment and labour relations jurisdiction (claim for unpaid wages under contract of employment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jared Odawa Oluga v Bethany Village Africa [2019] KEELRC 1560 (KLR)", Case Analysis (2019). Statement of Claim dated 30th June 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1560/eng@2019-05-27

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