Mirithu v County Government of Kiambu & another (Employment and Labour Relations Cause E208 of 2022) [2023] KEELRC 2091 (KLR)
The bottom line
#A Kenyan court ruled that an employer who stops paying an employee's salary without explanation constructively dismisses them and must pay for the rest of the contract.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Yes - the Respondents' unexplained stoppage of salary from May 2019 was an unreasonable and fundamental breach amounting to repudiation, and her exit was constructive dismissal
The court accepted the uncontroverted evidence that the 1st Respondent suddenly stopped remitting salary in May 2019 without explanation, and that verbal promises by the County Secretary to settle arrears were never honoured. Payment of remuneration is central to a contract of employment; stopping it without justification is a fundamental breach going to the root of the contract, entitling the employee to treat herself as discharged.
Whether the dismissal was unfair and what remedies flow
The constructive dismissal was substantively unfair; the court awarded salary for the unexpired 17 months of the fixed term, 7 months' statutory compensation, and service gratuity for 19 months served
Remedies for constructive dismissal are the same as for other dismissals. Though the statutory cap under section 49(1)(c) is 12 months, the court held it may award civil damages beyond the cap where breach of contract is established, and exercised discretion on the statutory compensation at 7 months considering length of service, expected service and new employment secured.
Whether the Claimant's Article 30 constitutional claim (slavery, servitude, forced labour) succeeded
Declined - the violation was not pleaded
Although counsel submitted extensively on Article 30, the statement of claim never pleaded the violation or gave particulars. The court cannot determine or award on unpleaded matters, so the claim under this head failed notwithstanding the merits apparent from the submissions.
Legal principles established
#- Constructive dismissal corresponds to repudiation of the employment contract by the employer and acceptance by the employee, and is a question of fact in each case
- Where an employer without justifiable reason stops paying salary, that is a fundamental breach amounting to repudiation of the contract of employment
- The section 49(1)(c) cap on compensation does not oust a claimant's entitlement to seek civil damages exceeding the statutory limit where breach of contract is established
Court orders
#- 1.Judgment entered for the Claimant against the Respondents for salary for the remainder of the contract term of Ksh. 2,808,570.00
- 2.Compensation of 7 months' gross salary (Ksh. 1,156,470.00) pursuant to section 49(1)(c) of the Employment Act
- 3.Service gratuity for the years worked of Ksh. 81,090.475
- 4.Respondents to issue a certificate of service to the Claimant within 30 days
- 5.Interest on the sums awarded at court rates from the date of judgment until full payment
- 6.Costs of the suit borne by the Respondents
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (unfair termination and contractual employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mirithu v County Government of Kiambu & another (Employment and Labour Relations Cause E208 of 2022) [2023] KEELRC 2091 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi), Memorandum of Claim dated 23rd March 2022, amended 18th July 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2091/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.