Mutahi v County Government of Kirinyaga & 3 others (Cause E048 of 2021) [2023] KEELRC 1992 (KLR)
The bottom line
#A Kenyan court ruled that a county government's decision to stop a doctor's salary while she worked in a Covid-19 ward forced her out of her job illegally.
What this practically means
#Executive summary
#Key legal issues
#Whether stoppage of salary amounted to constructive dismissal
Yes. Unlawful withholding of salary for over two months while the claimant was on duty, plus lapse of medical cover in a Covid-19 isolation ward, was a repudiatory breach entitling her to treat the contract as constructively terminated.
The court found RW1 admitted the claimant was deployed to the Covid-19 Isolation Ward, corroborating that she was denied salary while on duty. The respondents failed to produce the County HR Manual or prove the PSC HR Manual applied to her. Even an interdicted employee remains entitled to salary pending determination. The exit was not voluntary; she left due to intolerable conduct and breach by the employer.
Admissibility of the claimant's transcript and screenshots of the Advisory meeting recording
The court found them of little relevance; their admissibility did not affect the finding of constructive dismissal.
Although the claimant relied on the transcript with a certificate under section 106B(4) of the Evidence Act and the respondents objected on grounds of section 29 of the Data Protection Act, the court read the documents and found they did not materially bear on the outcome, since the constructive dismissal was proved by other unrebutted evidence.
Entitlement to compensatory damages under sections 49 and 50 of the Employment Act
Discretion declined due to the claimant's contributory misconduct, mitigation through new employment, and short service of about one year.
The court exercised its discretion under sections 49 and 50, noting the claimant's expulsion from all departments except the Covid-19 ward for misconduct, her ability to mitigate by securing alternative employment, and her service of only about one year, and therefore awarded no compensation for unfair termination.
Legal principles established
#- Where an employer's conduct renders continuation of the employment relationship intolerable such that the employee has no option but to resign, constructive dismissal is deemed to have occurred regardless of the employee's prior conduct
- Withholding an employee's salary while she is on duty and pending disciplinary process, without contractual or statutory sanction, is an unlawful repudiatory breach entitling the employee to treat the contract as constructively terminated
Court orders
#- 1.Declaration that the claimant was constructively dismissed and her employment was unfairly and unlawfully terminated
- 2.Declaration that the respondents breached the claimant's contract of employment
- 3.Award of unpaid salary for September, October and November 2020 amounting to Kshs.650,010.00, subject to statutory deductions
- 4.Certificate of service to be issued to the claimant
- 5.Costs of the suit to the claimant
- 6.Interest on the award at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (Article 41 invoked in submissions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutahi v County Government of Kirinyaga & 3 others (Cause E048 of 2021) [2023] KEELRC 1992 (KLR)", Case Analysis (2023). Cause No E048 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1992/eng@2023-08-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.