Lucas Onyango Saoke v Robinson Security Group [2021] KEELRC 870 (KLR)
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
#Key legal issues
#Terms of employment: verbal contract at Kshs. 53,000/- versus written appointment letter at Kshs. 43,000/-
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
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.
Whether non-payment of June 2016 salary constituted constructive dismissal
Yes - the failure to pay the June 2016 salary without any reason amounted to constructive dismissal, which was unfair and unjustified
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.
Remedies for unfair termination
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
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.
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 month salary in lieu of notice of Kshs. 53,000/-
- 2.Balance of June 2016 pay of Kshs. 23,694/-
- 3.1 year leave pay not taken of Kshs. 53,000/-
- 4.Unpaid house allowance of Kshs. 174,900/- as claimed
- 5.Compensation equivalent to 6 months' salary for unfair termination (6 x 53,000 = 318,000/-)
- 6.Total award of Kshs. 598,900/- less statutory deductions
- 7.Respondent to pay costs of the suit plus interest at court rates from the date of the judgment
- 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.