Njuguna v Sybrin Kenya (Employment and Labour Relations Cause E706 of 2020) [2024] KEELRC 287 (KLR)
The bottom line
#A Kenyan court ruled that an employee suspended pending criminal charges is still an employee and must be paid in full until the employer formally ends the job.
What this practically means
#Executive summary
#Key legal issues
#Limitation under Section 90 of the Employment Act, 2007
The claim is not time-barred; the cause of action accrued on or about 6 December 2019 upon acquittal and the Respondent's refusal to lift the suspension.
The court held a cause of action must be discerned from the pleadings, evidence and reliefs in totality. The Claimant was not challenging the suspension itself but the lawfulness of the Respondent's failure to lift a suspension expressly pending the criminal case. Since the Respondent never terminated the employment and the Claimant had a legitimate expectation of reinstatement upon acquittal, time began to run from the breach of that expectation after acquittal, not from the suspension date.
Effect of suspension on employment and benefits
Suspension is temporary and does not terminate employment; the Claimant remained an employee throughout and was entitled to full salary and benefits during suspension.
Relying on Canadian, Nigerian and Indian authorities, the court held suspension is either disciplinary or administrative, is transient, and does not extinguish the employment relationship. The suspension letter made the suspension subject to the conclusion of the criminal case, and the Respondent's witness confirmed the employment was never terminated. Absent any policy or contractual term authorising non-payment, withholding salary during suspension lacked legal justification.
Alleged repudiation by taking up other employment
The Respondent failed to prove the Claimant was employed elsewhere; even if there were repudiation, the Respondent never elected to accept it, so the contract subsisted.
The burden lay on the Respondent as the asserting party under Sections 107 and 109 of the Evidence Act. The NSSF and NHIF statements were uncertified electronic evidence, internally inconsistent and incapable of belief. The court applied Societe Generale v Geys: a repudiatory breach leaves the innocent party to elect to accept repudiation or affirm the contract; the Respondent adduced no evidence of such election, so the employment relationship did not end.
Constructive dismissal
The Respondent constructively dismissed the Claimant by failing to recall him to work after acquittal, evincing an intention no longer to be bound by the contract; no resignation letter was necessary.
Applying the contractual and unreasonable tests (Stephen Michuki v East African Safari Air Express), the court found the Respondent's representation in the suspension letter aroused a legitimate expectation of resumption upon acquittal. Its refusal to lift the suspension amounted to an indefinite suspension without pay and a failure to supply work - a repudiatory breach. By filing the suit the Claimant accepted the repudiation; per Amalgamated Beverage Industries v Jonker, formal resignation is unnecessary.
Reliefs on account of constructive dismissal
Reinstatement refused as impracticable; salary arrears of KShs. 26,000,000 and KShs. 2,500,000, compensation of eight months' gross salary (KShs. 2,000,000) under section 49(1)(c), certificate of service, interest and costs awarded.
Having found no justification for withholding salary, the court granted the sums sought for the suspension period and the January-October 2020 arrears. Reinstatement was declined given the lapse of over ten years and the finding of constructive dismissal. Compensatory award was discretionary under section 49(1), taking into account the Claimant's specialisation, the sensitive Fintech industry, the Respondent's unfair labour practices and length of service.
Legal principles established
#- Suspension is neither a termination nor a dismissal; an employee under suspension remains an employee and, absent a contractual or statutory provision, is entitled to full remuneration during suspension.
- Where a suspension is expressly pending a criminal case, the cause of action for refusing to lift it accrues upon acquittal and the employer's refusal to reinstate, not at the date of suspension.
- A repudiatory breach of an employment contract subsists until accepted by the innocent party; the party asserting rescission must prove acceptance of the repudiation.
- An indefinite suspension without pay after acquittal amounts to constructive dismissal; a formal resignation letter is not necessary for constructive dismissal.
- Electronic records (NSSF/NHIF statements) not certified under section 106B of the Evidence Act, and internally inconsistent, cannot prove employment elsewhere.
Court orders
#- 1.A declaration that the Claimant remained as an employee of the Respondent throughout the period he was under suspension, and up to the date of filing this suit.
- 2.Salary arrears for 8 years and six months [104 months] KShs. 26,000,000.
- 3.Salary arrears for the period 1st January 2020 to 30th October 2020, KShs. 2,500,000.
- 4.Compensation for constructive dismissal under the provisions of section 49[1][c] of the Employment Act, KShs. 2,000,000.
- 5.The Respondent is to issue a certificate of service to the Claimant within 30 days of this judgment.
- 6.Interest on the sums awarded at court rates from the date of this judgment till full payment.
- 7.Costs of this suit to the Claimant.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution and the Employment Act, 2007 (Section 12 invoked in pleadings; Section 49(1) and Section 90 of the Employment Act, 2007 central to determination)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyabena v Beshmon Limited (Cause 1495 of 2018) [2025] KEELRC 1141 (KLR)[2025] KEELRC 1141 (KLR)27 Mar 2025
- Nyabena v Beshmon Limited (Cause 1495 of 2018) [2025] KEELRC 1141 (KLR)[2025] KEELRC 1141 (KLR)27 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Njuguna v Sybrin Kenya (Employment and Labour Relations Cause E706 of 2020) [2024] KEELRC 287 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/287/eng@2024-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.