Lidede v Early Learning Montessori Center & 2 others (Cause 1400 of 2018) [2022] KEELRC 97 (KLR)
The bottom line
#A Kenyan court ruled that unpaid salaries and unremitted deductions forced an employee to resign, entitling her to over Kshs.1.1 million in compensation.
What this practically means
#Executive summary
#Key legal issues
#Existence of employer-employee relationship
The Claimant proved the employment relationship through the letter of appointment, employee handbook, emails and pay slips
As the claim was undefended, the court was required to verify the employment relationship before other findings. The claimant produced a letter of appointment dated 2nd January 2016, the employee handbook, email communications with representatives of the 1st Respondent and pay slips showing salary payments by the 1st Respondent. On these documents the court found the employment relationship proved.
Constructive dismissal
The Respondents' failure to pay salaries and remit statutory deductions pushed the Claimant to resign, amounting to constructive dismissal
Relying on Coca Cola v Ligaga and Milton M Isanya v Aga Khan Hospital Kisumu, the court found that the claimant's resignation letter expressly cited non-payment of May and June salaries, NHIF reimbursement, NSSF payment and the KRA P9 form. The failure to pay her dues constituted a fundamental/repudiatory breach of the employment contract, so her resignation amounted to constructive dismissal.
Entitlement to reliefs
Unpaid salaries, proved medical expenses and six months' salary as compensation were awarded; aggravated damages were declined; statutory remittances were ordered
In the absence of any proof of payment by the undefended Respondents, unpaid salaries of Kshs.275,402/- were awarded. Medical expenses as special damages were limited to receipts proved (Kshs.14,450/-). Compensation of six months' salary (Kshs.826,206/-) was granted under Section 49 of the Employment Act. Aggravated damages failed for want of proof of oppressive or arbitrary conduct. Orders for remittance of taxes, NHIF and NSSF deductions issued.
Legal principles established
#- In an undefended employment claim, the claimant must establish the existence of an employment relationship as a preliminary issue before establishing unfair termination
- Failure by an employer to pay salaries and remit statutory deductions constitutes a fundamental breach justifying a finding of constructive dismissal
- Special damages must be specifically pleaded and proved
Court orders
#- 1.Judgment entered for the Claimant against the Respondents jointly and severally in the total sum of Kshs.1,116,058/=
- 2.Award of Kshs.275,402/- being unpaid salaries for May and June 2018
- 3.Award of Kshs.14,450/- as refund of medical expenses proved by receipts
- 4.Award of Kshs.826,206/- being six (6) months' salary as compensation for constructive dismissal under Section 49 of the Employment Act
- 5.Respondents directed to remit all unpaid taxes with respect to the Claimant's earnings and pay penalties accrued totalling Kshs.40,000/-
- 6.Respondents directed to remit all National Hospital Insurance Fund deductions made from the Claimant's salary to the statutory body
- 7.Respondents directed to remit all National Social Security Fund deductions made from the Claimant's salary to the statutory body
- 8.Respondents to pay the Claimant's costs of the suit
- 9.Interest at court rates on the decretal sum from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007 and the Constitution of Kenya, 2010 (Articles 41, 43(1)(a))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lidede v Early Learning Montessori Center & 2 others (Cause 1400 of 2018) [2022] KEELRC 97 (KLR)", Case Analysis (2022). Nairobi ELRC Cause No. 1400 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/97/eng@2022-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.