Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No E037 of 2021· [2023] KEELRC 1936 (KLR)

Oweya v Sichangi Partners & Associates Network LLP (Cause E037 of 2021) [2023] KEELRC 1936 (KLR)

Employment and Labour Relations Court
27 July 2023
1,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The claimant, an advocate, was employed by the respondent, a limited liability company, as an associate with effect from 5 February 2018 at a monthly salary of Kshs 136,282.28. He alleged that the respondent created a harsh working environment by failing to pay his salary for six months from around April 2019, failing timely to remit office rent, and failing to provide petty cash or transport for court attendances, while other employees were paid on time. He resigned on 9 May 2019 and his terminal dues were not paid. He sought declarations of constructive dismissal, unpaid salaries, notice pay, leave pay, compensation, a certificate of service, interest and costs. The respondent entered appearance but filed no response despite being given time by the court, and did not attend the hearing. The court found the claims uncontroverted but analysed them on the merits. Applying the test in Coca Cola East & Central Africa Limited v Maria Kagai Liganga and section 44(3) of the Employment Act, 2007, the court held that six months' non-payment of salary fundamentally repudiated the contract, breached the claimant's dignity, and amounted to constructive dismissal that was wrongful and unfair. The discrimination claim failed for want of particulars. Judgment was entered for the claimant: a declaration of constructive dismissal, compensation of Ksh 410,484, notice pay of Ksh 136,828.28, unpaid salaries of Ksh 820,969.68 with interest from 9 May 2019, leave pay of Ksh 182,255.30, a certificate of service under section 51, and costs.

Key legal issues

#
01

Constructive dismissal

Holding

Six months' non-payment of salary fundamentally repudiated the contract, entitling the claimant to resign and be treated as constructively, wrongfully and unfairly dismissed

Reasoning

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.

p. 4
02

Remedies for constructive dismissal

Holding

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

Reasoning

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.

p. 4
03

Discrimination

Holding

The discrimination claim failed for want of particulars

Reasoning

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.

p. 4
04

Uncontroverted claims

Holding

The respondent's failure to file a response or attend hearing meant the claims were not controverted and were analysed on the merits

Reasoning

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.

p. 3

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. 1.Declaration that employment terminated through constructive dismissal which is found wrongful and unfair
  2. 2.Compensation at Ksh 410,484
  3. 3.Notice pay Ksh 136,828.28
  4. 4.Unpaid salaries Ksh 820,969.68 with interests from 9 May 2019 until paid in full
  5. 5.Payment in lieu of taking leave Ksh 182,255.30
  6. 6.Certificate of service to be issued in accordance with section 51 of the Employment Act, 2007
  7. 7.Costs of the claim awarded to the claimant

Authorities

#

Legislation

  • Employment Act, 2007section 44(3)
  • Employment Act, 2007section 51

Cases cited (4)

  • Vincent Omollo Obuom v Catholic Diocese of Nakuru
    [2015] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Liganga
    [2015] eKLR
  • Jonathan Spangler v Centre for African Family Studies (CAFS)
    [2017] eKLR
  • CNR; FITM & another (Respondent) (Cause E204 of 2021)
    [2022] KEELRC 82 (KLR) (26 April 2022) (judgment)
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.

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.