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 No. 379 of 2017· [2019] KEELRC 2013 (KLR)

Francis Kimani Kinuthia v Flamingo Hill Camp Limited [2019] KEELRC 2013 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
21 January 2019
MMM. Mbaru
1,733 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

#

What this practically means

#

Executive summary

#
The claimant, employed by the respondent as a Pool Attendant from 1st February 2011 at a monthly wage of Ksh. 8,000 later increased to Ksh. 20,211, sued for unpaid dues and compensation following his resignation in May 2017. He alleged he worked seven days a week without rest days, overtime or public holiday pay; was assigned extra duties as waiter and lifeguard contrary to his employment terms; was sent on unpaid forced leave for three months in 2016 and again from February to May 2017 due to the respondent's claimed low economic status; and resigned following prolonged non-payment of wages, amounting to constructive dismissal. The respondent, though served, did not attend the hearing and called no evidence, filing only a letter of service, a pay statement for July 2017 and a letter in response to the demand letter. The court, relying on Lear Shighadi Sinoya v Avtech Systems Limited and the Canadian Supreme Court decision in David Potter v New Brunswick Legal Aid Services Commission, found that non-payment of wages contrary to sections 18 and 20 of the Employment Act, 2007 constituted a fundamental breach, and that financial hardship did not justify it. The claimant's evidence was unchallenged. The court declared the claimant constructively dismissed and entitled to compensation of Ksh. 202,110 (10 months gross wage), notice pay of Ksh. 20,211, unpaid wages of Ksh. 141,477 and costs. Claims for house allowance, overtime, rest days, public holidays and service pay were not awarded, the leave period being held to cover leave-related dues and service pay matters being referable to the labour officer.

Key legal issues

#
01

Constructive dismissal

Holding

The claimant was constructively dismissed where the respondent failed to pay wages for April to June 2016 and February to May 2017 and sent him on prolonged unpaid forced leave, causing his resignation

Reasoning

The claimant was under an employment contract providing for payment of a monthly wage. No proof of payment was submitted for the periods when wages were due, and the respondent's own letter acknowledged dues were owing but no payment was made. This was a fundamental breach under sections 18 and 20 of the Employment Act, 2007, rendering the claimant's resignation a constructive dismissal amounting to unfair termination. The claimant's unchallenged testimony supported this finding.

p. 3
02

Remedies for constructive dismissal

Holding

Compensation of 10 months gross wage and one month notice pay were awarded, plus unpaid wages for the forced leave periods

Reasoning

Compensation was assessed at 10 months gross wage at Ksh. 202,110. Notice pay is due in cases of constructive dismissal, assessed at one month gross pay of Ksh. 20,211. The unpaid wages for April to June 2016 and February to May 2017 totalled Ksh. 141,477. The forced leave period of 6 months covered the annual leave entitlement of 21 days per year under section 28 of the Employment Act, 2007, as well as overtime, rest days and public holiday claims.

p. 3

Legal principles established

#
  • Constructive dismissal arises where an employer creates intolerable work conditions that force an employee to resign
  • Non-payment of wages is a fundamental breach of the employment contract under sections 18 and 20 of the Employment Act, 2007 and can justify a finding of constructive dismissal
  • An employer's financial difficulties do not justify breaching the employment contract by failing to pay wages
  • The burden is on the employee to demonstrate intolerable conditions justifying resignation in a constructive dismissal claim

Court orders

#
  1. 1.Declaration that the claimant was constructively dismissed from his employment by the respondent
  2. 2.Award of compensation at Ksh. 202,110.00 (10 months gross wage)
  3. 3.Award of notice pay at Ksh. 20,211.00 (one month gross pay)
  4. 4.Award of unpaid wages of Ksh. 141,477.00
  5. 5.Costs of the suit to the claimant

Authorities

#

Legislation

  • Employment Act, 2007sections 18 and 20
  • Employment Act, 2007section 28

Cases cited (3)

  • Lear Shighadi Sinoya versus Avtech Systems Limited
    [2017] eKLR
  • Osman Eggae Egaal versus John Philip Tilley & Others
    Petition No. 90 of 2012
  • David Potter versus New Brunswick Legal Aid Services Commission
    2015 SCC 10
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007; Labour Relations Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Kimani Kinuthia v Flamingo Hill Camp Limited [2019] KEELRC 2013 (KLR)", Case Analysis (2019). Cause No. 379 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2013/eng@2019-01-21

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