Kiprop v Melchizedek Hospital Limited (Cause E134 of 2022) [2023] KEELRC 3090 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
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.
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.
Effect of the Respondent's failure to call a witness
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.
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.
Entitlement to reliefs
Salary arrears, pro rata leave pay and bounced cheque penalties awarded; declaration, notice pay and 12 months' compensation declined.
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the Claimant against the Respondent for pro rata leave pay for 6 months 19 days.
- 2.Penalties for bounced cheques of Kshs.12,000.00 awarded.
- 3.Unpaid salary for February, March, April and 19 days of May 2021 awarded.
- 4.Costs of the suit awarded to the Claimant.
- 5.Interest at court rates from the date of judgment till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (court constituted to determine employment 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.
- Omache v National Bank of Kenya Limited (Cause E792 of 2021) [2025] KEELRC 32 (KLR)[2025] KEELRC 32 (KLR)17 Jan 2025
Cite this brief
#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.