Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowed· [2021] KEELRC 870 (KLR)

Lucas Onyango Saoke v Robinson Security Group [2021] KEELRC 870 (KLR)

Employment and Labour Relations Court
28 September 2021
2,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer who couldn't prove an employee signed an appointment letter lost big, because unpaid salary counted as constructive dismissal.

What this practically means

#

Executive summary

#
The claimant, employed on 9th July 2014 as an operations manager, sued for unfair (constructive) termination and assorted employment benefits. He alleged he was suspended indefinitely in May 2016, paid half salary for May, and never paid for June 2016, forcing him to stay away from work. He sought declarations of unfair termination, notice pay, salary arrears, refunds of deductions, house allowance, overtime, public holiday pay, a 13% increment, twelve months' compensation under section 49(1)(c) of the Employment Act, leave pay, costs and a certificate of service. The respondent admitted the employment but asserted a written appointment at Kshs. 43,000/- all-inclusive, contending the claimant deserted duty after a show cause letter over gross misconduct (tampering with evidence in a theft investigation) following prior warnings for bribery and assault. The claimant denied the appointment letter's authenticity and any desertion. At hearing, both parties testified. The court found the respondent failed to discharge the burden of proving the claimant signed the letter of appointment, and therefore presumed verbal employment at Kshs. 53,000/- exclusive of house allowance. On termination, the court found the non-payment of June 2016 salary unjustified, no disciplinary process was undertaken for alleged abscondment, and the desertion warning was sent to an unproved address, amounting to constructive dismissal that was unfair and unjustified. The court awarded notice pay, June 2016 salary balance, one year's leave pay, house allowance of Kshs. 174,900/- and six months' salary as compensation, totaling Kshs. 598,900/- less statutory deductions, with costs and interest. Other heads, including overtime, deduction refunds, increment, public holiday pay and the certificate of service, were not granted.

Key legal issues

#
01

Terms of employment: verbal contract at Kshs. 53,000/- versus written appointment letter at Kshs. 43,000/-

Holding

The court found the claimant was verbally employed on 9/7/2014 at a salary of Kshs. 53,000/- because the respondent failed to prove the claimant signed the letter of appointment

Reasoning

The claimant denied ever being issued with or signing the letter of appointment, saying he first saw it at his advocates' office after filing suit. Once denied, the burden shifted to the respondent as custodian of employment documents to prove authenticity, which it failed to do. The court therefore presumed the claimant's version of verbal employment and salary.

p. 4
02

Whether non-payment of June 2016 salary constituted constructive dismissal

Holding

Yes - the failure to pay the June 2016 salary without any reason amounted to constructive dismissal, which was unfair and unjustified

Reasoning

The respondent admitted the claimant never worked in June 2016 and his salary was not paid, yet issued no show cause letter or disciplinary process for the alleged abscondment. The desertion warning letter was sent to a Kisumu address the claimant denied and for which no evidence showed it was his address. With no justification for withholding salary, constructive dismissal was established.

p. 4
03

Remedies for unfair termination

Holding

The court awarded notice pay, balance of June 2016 salary, one year's leave pay, house allowance and six months' salary as compensation, plus costs and interest

Reasoning

Applying the Employment Act remedies framework, the court exercised discretion to award six months' salary as compensation for the unfair termination rather than the twelve months claimed, together with contractual and statutory arrears computed on the found salary of Kshs. 53,000/-, less statutory deductions.

p. 4

Legal principles established

#
  • Where an employee denies signing a letter of appointment, the onus of proving signature rests on the employer who produced it
  • Failure to pay an employee's salary without any reason amounts to constructive dismissal
  • Non-payment of salary without justification renders a dismissal unfair and unjustified

Court orders

#
  1. 1.1 month salary in lieu of notice of Kshs. 53,000/-
  2. 2.Balance of June 2016 pay of Kshs. 23,694/-
  3. 3.1 year leave pay not taken of Kshs. 53,000/-
  4. 4.Unpaid house allowance of Kshs. 174,900/- as claimed
  5. 5.Compensation equivalent to 6 months' salary for unfair termination (6 x 53,000 = 318,000/-)
  6. 6.Total award of Kshs. 598,900/- less statutory deductions
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of the judgment

Authorities

#

Legislation

  • Employment ActSection 49(1)(c)
  • Employment ActSection 51

Cases cited (2)

  • Stanley Kauga Nkaricha v Meru Teachers College and Another
    [2016] eKLR
  • Supermarine Handling Service Ltd v KRA
    CA No. 85 of 2006
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 49(1)(c) and 51 invoked for remedies)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lucas Onyango Saoke v Robinson Security Group [2021] KEELRC 870 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/870/eng@2021-09-28

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