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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 3090 (KLR)

Kiprop v Melchizedek Hospital Limited (Cause E134 of 2022) [2023] KEELRC 3090 (KLR)

Employment and Labour Relations Court
28 November 2023
2,516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded unpaid salary and leave pay to a resigning employee but refused constructive dismissal damages because her resignation letters never cited the unpaid wages.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 1st October 2020 on a one-year contract at a gross salary of Kshs.150,000, sued for salary arrears, damages for wrongful/constructive dismissal and breach of contract after resigning on 19th April 2021, alleging she was driven out by two months' unpaid salary. She sought a declaration of constructive dismissal, salary arrears of Kshs.545,000, pay in lieu of notice, pro rata leave, 12 months' compensation, Kshs.12,000 for dishonoured cheques, costs and interest. The Respondent admitted the employment and leave entitlement but denied breach, attributing non-payment to delayed insurance remittances; it called no witness. The court framed two issues: constructive dismissal and entitlement to reliefs. It held the Respondent's failure to call evidence left its defence as mere averments, yet the Claimant's burden of proof was not reduced. Although the non-payment of salary amounted to a repudiatory breach, the court, applying the contractual test in Coca Cola v Ligaga and Western Excavating v Sharp, found no causal link: both resignation letters expressed appreciation and cited no reason, and the Claimant never protested the arrears in writing. Constructive dismissal was therefore not proved; the Claimant was found to have resigned voluntarily. Salary arrears, pro rata leave for 6 months 19 days, and Kshs.12,000 cheque penalties were awarded, with costs and interest from the date of judgment. The declaration, notice pay and 12 months' compensation were declined.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

No. The Respondent's non-payment of salary was a repudiatory breach, but the Claimant failed to demonstrate the causal link because her resignation letters did not cite non-payment as the reason and she resigned voluntarily.

Reasoning

Adopting the contractual test in Coca Cola v Ligaga and Western Excavating v Sharp, the court required a repudiatory breach plus a causal link between the employer's conduct and the employee's departure. Although the unpaid salary amounted to repudiatory breach, both resignation letters gave appreciation rather than grievance, no reason for leaving was stated, and no written demand or protest was made. The court found the Claimant resigned voluntarily to pursue other interests.

p. 5
02

Effect of the Respondent's failure to call a witness

Holding

The Respondent's response remained mere unsubstantiated averments, but this did not ipso facto prove the Claimant's case, which depended on the cogency of her own evidence.

Reasoning

Since the Respondent called no witness, its pleaded denials amounted to unsubstantiated allegations and the Claimant's evidence was uncontroverted. However, the court held that an undefended suit does not lighten the claimant's statutory burden under Section 47(5) of the Employment Act; the claim still stands or falls on the cogency of the claimant's evidence.

p. 3
03

Entitlement to reliefs

Holding

Salary arrears, pro rata leave pay and bounced cheque penalties awarded; declaration, notice pay and 12 months' compensation declined.

Reasoning

Unpaid salary for February to May 2021 was proved and unrebutted, as were the dishonoured cheques and Kshs.12,000 penalty. Pro rata leave was payable as the Respondent, despite admitting 21 days' annual leave entitlement, led no evidence of leave taken. Notice pay failed because the Claimant herself served one month's notice, and compensation failed with the finding of no constructive dismissal.

p. 6

Legal principles established

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  • An undefended claim does not lower the claimant's burden of proof; the claimant must still prove unfair termination on evidence.
  • Constructive dismissal requires the employee to show a repudiatory breach by the employer and a causal link between the employer's conduct and the resignation; the burden lies with the employee.

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent for pro rata leave pay for 6 months 19 days.
  2. 2.Penalties for bounced cheques of Kshs.12,000.00 awarded.
  3. 3.Unpaid salary for February, March, April and 19 days of May 2021 awarded.
  4. 4.Costs of the suit awarded to the Claimant.
  5. 5.Interest at court rates from the date of judgment till payment in full.

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48

Cases cited (7)

  • Autar Singh Bahra & another v Raju Govindji
    HCCC No. 548 of 1998
  • Daniel Torotich Arap Moi v Mwangi Stephen Muriithi & another
    (2014) eKLR
  • Coca Cola East and Central Africa Ltd v Maria Kagai Ligaga
  • Godfrey Allan Tolo v Tobias O. Otieno & another
    (2022) eKLR
  • D.K. Njagi Marete v Teachers Service Commission
    (2013) eKLR
  • Nicholus Kipkemoi Korir v Hatari Security Guards Ltd
    (2016) eKLR
  • Western Excavating (ECC) Ltd v Sharp
    (1978) QB 761
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (court constituted to determine employment claims)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kiprop v Melchizedek Hospital Limited (Cause E134 of 2022) [2023] KEELRC 3090 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3090/eng@2023-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.