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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 973 (KLR)

Maureen Wanjiru Mwangi v Blue Sea Energy Limited [2020] KEELRC 973 (KLR)

Employment and Labour Relations Court
29 May 2020
MOMaureen Onyango
1,131 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who failed to pay an employee's salary was found to have constructively dismissed her, and was ordered to pay Kshs.1.18 million plus costs and interest.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent as a Public Relations and Corporate Affairs Manager on contractual terms, initially pleaded as commencing 2nd May 2015 but testified as running from 2nd March to 31st July 2015, at a monthly salary of Kshs.250,000. She alleged that during her five months of employment the Respondent partly paid her salary and failed to settle arrears, paying only Kshs.70,000 in cash and issuing a cheque of Kshs.200,000 that was dishonoured. She sued for Kshs.1,180,000 in salary and allowance arrears, settlement of NSSF and NHIF dues, interest, compensation for psychological trauma, and costs. The Respondent entered appearance but filed no response, so the claim proceeded by formal proof and the pleaded allegations remained uncontroverted. The court framed two issues: whether the Claimant was constructively dismissed and whether she was entitled to the reliefs sought. Applying the contractual test for constructive dismissal as adopted in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga, and noting an email from the Respondent's Chief Executive Officer acknowledging the debt, the court found the failure to pay salary amounted to repudiatory breach constituting constructive dismissal, which is unfair dismissal. Judgment was entered for Kshs.1,180,000 on prayer 1 only. The NSSF/NHIF claim failed for want of proof of non-remittance, and the trauma claim failed because it was not specifically pleaded and proved. The Claimant was awarded costs and interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

Yes - the Respondent's failure to pay the Claimant her salary constituted repudiatory breach and constructive dismissal, which is unfair dismissal; the allegations remained uncontroverted as the Respondent did not file a response.

Reasoning

The court adopted the contractual test from Coca Cola East & Central Africa Limited v Maria Kagai Ligaga, requiring proof of repudiatory breach and a causal link between the employer's conduct and the employee's departure. The Respondent entered appearance but filed no response, so the claim proceeded by formal proof and the pleaded allegations stood uncontroverted. The CEO's email of 18 July 2015 acknowledged the debt, corroborating the Claimant's testimony that she was owed salary and allowances and resigned because she could not work without pay.

p. 2
02

Whether the Claimant is entitled to the reliefs sought

Holding

Partially - only prayer 1 (Kshs.1,180,000 salary and allowance arrears) succeeded; the NSSF/NHIF and psychological trauma claims failed for want of proof.

Reasoning

The court found the CEO had acknowledged owing the Claimant money, justifying judgment on prayer 1 for Kshs.1,180,000. The NSSF/NHIF claim failed because the Claimant did not annex statements proving non-remittance. The trauma claim failed because compensation for psychological trauma must be specifically pleaded and proved under Section 49 of the Employment Act and Section 12 of the Employment and Labour Relations Court Act, and the Claimant had sought trauma compensation rather than compensation for constructive dismissal.

p. 2

Legal principles established

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  • Failure to pay an employee's salary may constitute repudiatory breach amounting to constructive dismissal, which is an unfair dismissal
  • The contractual (narrow) test applies to constructive dismissal: the employee must show repudiatory breach by the employer and a causal link to the departure

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent in the sum of Kshs.1,180,000.00
  2. 2.The Claimant awarded costs of the suit
  3. 3.Interest to accrue at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 49
  • Employment and Labour Relations Court ActSection 12
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (6)

  • Milton M Isanya v Aga Khan Hospital Kisumu
    [2017] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Western Excavating (ECC) Ltd -v- Sharp
    [1978] ICR 222
  • Pedersen -v- Camden London Borough Council
    [1981] ICR 674
  • Office -v- Roberts
    (1980) IRLR 347
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12; Employment Act, Section 49

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Maureen Wanjiru Mwangi v Blue Sea Energy Limited [2020] KEELRC 973 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/973/eng@2020-05-29

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