Kiliru v Proctor & Allan (EA) Limited (Cause 231 of 2021) [2023] KEELRC 2496 (KLR)
The bottom line
#An employer who stops paying an employee's salary for months commits constructive dismissal and must pay arrears, leave dues and compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Yes - the Respondent's admitted failure to pay salary for 14 months was a repudiatory breach constituting constructive dismissal
The court found the non-payment of salary for 14 months demonstrated a repudiatory breach creating grounds for constructive dismissal. The Respondent admitted non-payment, which was the gravamen of the claim. The causal link between the resignation and the breach was established on the evidence, including the P9 forms.
Whether the Claimant was entitled to leave dues
Yes - the Respondent failed to rebut the claim with leave records
The Respondent kept records of leave forms but did not produce any evidence showing the Claimant took his leave. In the absence of rebuttal, the claim for 24 days' leave dues succeeded.
Whether the Claimant was entitled to pension claims
No - pension is a matter for another forum
The court declined jurisdiction over the pension claim, holding it belongs to a different forum and would not be determined in this suit.
Entitlement to costs
Claimant denied costs for failure to issue a demand letter
Although the Claimant succeeded substantively, the court disentitled him to costs because he never issued a demand letter to the Respondent before instituting the suit.
Legal principles established
#- Failure to pay an employee's salary constitutes a repudiatory breach entitling the employee to claim constructive dismissal
- An employer alleging that an employee took leave must rebut the leave claim with records; failure to do so entitles the employee to leave dues
Court orders
#- 1.14 month's salary – Kshs. 7,132,328/-
- 2.Leave dues for 24 days – Kshs. 407,561.60
- 3.Compensation for the termination set at 3 months – 1,528,356/-
- 4.Interest at court rates on the sums above from the date of judgment till payment in full
- 5.Certificate of service in terms of section 51 of the Employment Act
- Jurisdiction invoked
- First-instance jurisdiction of the Employment and Labour Relations Court (not expressly invoked in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiliru v Proctor & Allan (EA) Limited (Cause 231 of 2021) [2023] KEELRC 2496 (KLR)", Case Analysis (2023). Cause No 231 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2496/eng@2023-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.