Musiomi v Regency Sacco Society Limited (Cause 1256 of 2016) [2023] KEELRC 3415 (KLR)
The bottom line
#A Kenyan court ruled that sending an employee on indefinite unpaid leave without pay amounted to unfair constructive dismissal, awarding her over KShs. 1.6 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant absconded duty or was constructively dismissed
The Claimant did not abscond; she was sent on indefinite unpaid leave from 8th October 2015. Non-payment of her salary constituted a repudiatory breach amounting to constructive dismissal.
Leave requisition forms showed she had exhausted her 26-day leave entitlement, and the Committee minutes extended her leave by 20 days, so the court was not persuaded she was to resume on 8th October 2015. The Respondent's 22nd July 2016 letter advised her to stay home pending reorganization, confirming the absence was with its authority. The Respondent also led no evidence of efforts to trace her if she had absconded. Non-payment of remuneration without justification was held a repudiatory breach under the Coca-Cola contractual test.
Whether the termination was unfair and unlawful
Yes — constructive dismissal flowing from the employer's unreasonable conduct or breach of fundamental contract terms can seldom be fair or lawful.
Having found the Respondent sent the Claimant on indefinite unpaid leave and failed to pay her salary, the court held that conduct amounting to constructive dismissal is by its nature unreasonable or a fundamental breach, and therefore the separation was unfair and unlawful.
Whether the Respondent's Counterclaim for fraud and loan arrears should be granted
No — the Counterclaim was wholly unproved and dismissed with costs.
The Kshs. 23,000,000 claim was framed as special damage requiring specific proof; the evidence did not show the loss or its attribution to the Claimant. The Kshs. 312,500 loan claim lacked any account records, and the Respondent's witness was unsure of the debt. The Claimant's assertion of shares available for offset went unchallenged.
Legal principles established
#- An employer alleging desertion must show efforts to trace the employee and put them on notice of contemplated termination
- Non-payment of agreed remuneration is a repudiatory breach that may justify a finding of constructive dismissal
- An employee on indefinite unpaid leave remains an employee entitled to remuneration unless a constructive dismissal is established
Court orders
#- 1.A declaration that the Claimant was constructively dismissed from employment
- 2.Unpaid salary for the period 15th September 2015 to 27th September 2017: KShs. 1,105,660/-
- 3.Compensation for unfair termination pursuant to Section 49(1)(c) of the Employment Act 2007 equivalent to 12 months gross salary: Kshs. 562,200/-
- 4.Interest at Court rates from the date of Judgment until payment in full
- 5.Costs of the Suit to the Claimant
- 6.Certificate of Service to be issued to the Claimant within 30 days of the Judgment
- 7.Respondent's Counterclaim dismissed with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Claims for unfair termination and constructive dismissal; remedies under Section 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musiomi v Regency Sacco Society Limited (Cause 1256 of 2016) [2023] KEELRC 3415 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi) — Memorandum of Claim dated 27th June 2016, amended 30th December 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3415/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.