Oweya v Sichangi Partners & Associates Network LLP (Cause E037 of 2021) [2023] KEELRC 1936 (KLR)
The bottom line
#Kenya's Employment Court confirmed that failing to pay a worker's salary for six months is a fundamental breach that lets the employee resign and win compensation.
What this practically means
#Executive summary
#Key legal issues
#Constructive dismissal
Six months' non-payment of salary fundamentally repudiated the contract, entitling the claimant to resign and be treated as constructively, wrongfully and unfairly dismissed
The claimant was under a written contract requiring monthly payment of salary. The employer failed to pay for six months without explanation. Relying on section 44(3) of the Employment Act, 2007, the court held this amounted to a fundamental breach justifying summary termination by the employee. Uncontroverted claims were analysed on the merits.
Remedies for constructive dismissal
Notice pay at the last salary, three months' compensation for wrongful and unfair termination given the short service period, unpaid salaries with interest, and leave pay were awarded
The court awarded notice pay at Ksh 136,828.28. Because the claimant served under two years and was out of employment due to the employer's conduct, compensation of three months' salary (Ksh 410,484) was found appropriate. Leave was awarded at Ksh 182,255.30 absent a work record to negate it, and unpaid six months' salary with interest from 9 May 2019.
Discrimination
The discrimination claim failed for want of particulars
The claimant's only assertion was that other employees were paid while he was not, but he did not particularise the discrimination claim. Having already succeeded on constructive dismissal, the court found that this sufficed and did not make any finding of discrimination.
Uncontroverted claims
The respondent's failure to file a response or attend hearing meant the claims were not controverted and were analysed on the merits
The respondent entered appearance but filed no response despite being given 14 days by the court and did not attend the hearing on 4 July 2023. The court therefore treated the claim as uncontroverted but still analysed the evidence on the merits rather than entering judgment automatically.
Legal principles established
#- Non-payment of a salary for work done is a serious breach of the employment contract that negates the dignity of the employee and fundamentally repudiates the contract under section 44(3) of the Employment Act, 2007, entitling the employee to treat the contract as terminated
- The test for constructive dismissal requires that the employee terminated the contract, that continued employment had become intolerable, and that the employer made it intolerable
- A certificate of service must be issued at the end of employment regardless of the reasons leading to termination
Court orders
#- 1.Declaration that employment terminated through constructive dismissal which is found wrongful and unfair
- 2.Compensation at Ksh 410,484
- 3.Notice pay Ksh 136,828.28
- 4.Unpaid salaries Ksh 820,969.68 with interests from 9 May 2019 until paid in full
- 5.Payment in lieu of taking leave Ksh 182,255.30
- 6.Certificate of service to be issued in accordance with section 51 of the Employment Act, 2007
- 7.Costs of the claim awarded to the claimant
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sifa Investment Limited v Mutuku (Appeal E222 of 2024) [2025] KEELRC 1231 (KLR)[2025] KEELRC 1231 (KLR)30 Apr 2025followed
Cite this brief
#Cite this brief
Caselaw, "Oweya v Sichangi Partners & Associates Network LLP (Cause E037 of 2021) [2023] KEELRC 1936 (KLR)", Case Analysis (2023). Cause No E037 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1936/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.