Benjamin v County Government of Nakuru & 4 others (Cause 22 of 2019) [2020] KEELRC 619 (KLR)
The bottom line
#A Kenyan court ruled that stopping a doctor's salary for unexplained absence was lawful, but he still won Ksh.5.2 million in unpaid salary arrears.
What this practically means
#Executive summary
#Key legal issues
#Whether there was constructive dismissal
No constructive dismissal; there was no termination of employment by either party and the employment relationship subsists, the claimant having resumed duty
Constructive dismissal requires the employee to terminate the contract in response to the employer's repudiatory conduct making continued employment intolerable (Solid Doors requirements). Here, although the claimant faced financial hardship after salary stoppage, he did not terminate employment; the stoppage of salary is not equivalent to termination, and the claimant later resumed duty.
Whether the stoppage of salary was justified and whether rights were violated
The stoppage of salary was justified; the claimant was absent from duty without approval after his 4-year study release lapsed on 21st October 2017, amounting to gross misconduct, and no constitutional or statutory violations were established
The study release was for a fixed 4-year period which lapsed on 21st October 2017 without extension or communication. The claimant failed to account for his whereabouts thereafter, failed to seek extension, and failed to disclose disciplinary proceedings at Moi University. Under Regulation K.8 and sections 44 and 19(1)(c) of the Employment Act, absence without lawful cause permits salary stoppage; indeed continued payment would have wasted public funds under Article 226(5).
Whether the claimant was discriminated against on grounds of ethnicity
No discrimination proved; the differing treatment of colleagues Dr Gathogo and Dr Mwaura did not establish discrimination because the claimant's own absence was unjustified and the colleagues' circumstances differed
Discrimination is outlawed under section 5 of the Employment Act and Article 27 of the Constitution, but such a claim must be proved with sufficient evidence. The claimant's colleagues were not parties, and the terms and periods of their releases and of the stoppage and reinstatement of their salaries differed. Since the foundation of the claimant's case — the stoppage of his salary for unexplained absence — was justified, discrimination could not rest on it.
Whether libel/defamation arises from the declined visa card
No libel or defamation; the claimant's account had no funds at all, distinguishing Ombija and Chesang, and the respondents were not parties to the bank card transaction
The relationship between a bank and customer gives rise to a cause of action against the bank where a card is dishonoured despite sufficient funds. Here the bank was never disclosed or joined, and unlike Ombija and Chesang the claimant had no funds in his account. He bore a duty to verify his balances before making purchases; the embarrassment cannot be visited on the respondents who were strangers to the transaction.
Entitlement to salary arrears and unpaid salary
Salary arrears of Ksh.4,694,756 for November 2013 to February 2018 and unpaid salary of Ksh.525,196.45 for 20th January 2020 to April 2020 awarded; the claimant's evidence on the promotion with effect from 30th October 2013 was uncontroverted as no defence was filed
The promotion letter dated 5th February 2014 with effect from 30th October 2013 was unchallenged since no defence was filed, making the underpayment evidence uncontroverted. Arrears run from November 2013 to February 2018. No arrears lie for the period of stoppage (no work performed), but salary for work performed after resumption on 20th January 2020 is due in full.
Legal principles established
#- Constructive dismissal requires the employee to have terminated the contract by reason of the employer's conduct that made continued employment intolerable; a stoppage of salary without termination does not constitute constructive dismissal
- Absence from work without leave or lawful cause after lapse of a fixed-term study release amounts to gross misconduct justifying summary dismissal under section 44 of the Employment Act
- A claim of discrimination must be proved with sufficient evidence; an allegation alone is insufficient
- Paying a salary to an employee absent from duty without permission is unlawful and constitutes waste of public funds under Article 226(5) of the Constitution
Court orders
#- 1.Judgment entered for the claimant against the respondents jointly and severally
- 2.Salary arrears for the period of November, 2013 to February, 2018 awarded at Ksh.4,694,756
- 3.Unpaid salary for the period of 20th January, 2020 to April, 2020 awarded at Ksh.525,196.45
- 4.The awarded dues payable with interests from the date due until payment in full at court rate interests
- 5.Claimant awarded 50% of his costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction over employment within a county government (Employment and Labour Relations Court Act; claim filed as Memorandum of Claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin v County Government of Nakuru & 4 others (Cause 22 of 2019) [2020] KEELRC 619 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/619/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.