Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No E642 of 2022· [2024] KEELRC 356 (KLR)

Diella v Jet Spa Limited (Cause E642 of 2022) [2024] KEELRC 356 (KLR)

Employment and Labour Relations Court
23 February 2024
2,478 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer paid nearly Kshs 3.4 million for underpaying an employee and using her image in adverts without permission.

What this practically means

#

Executive summary

#
The Claimant was employed by the Respondent as a Spa Manager effective 1st August 2021 at an agreed gross monthly salary rising to Kshs 150,000. She alleged that the Respondent made inconsistent and incomplete salary payments, missed payments for August and September 2021 entirely, and underpaid her from October 2021 to March 2022, before prevailing upon her to resign on 29th March 2022. The Respondent did not enter appearance or file a Defence; service was proved and the matter proceeded to formal proof. The Claimant testified and exhibited Mpesa statements, bank statements and payment vouchers evidencing sporadic, incomplete payments. The court framed two issues: whether the Claimant was constructively dismissed, and what reliefs avail. Applying the test in Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga, the court held that the underpayment of salary amounted to repudiation of a fundamental term going to the root of the contract, breaching both the contract and Section 17(1) of the Employment Act, and found the Claimant was constructively and unfairly terminated. The court also found a violation of her right to fair labour practices under Article 41(1) of the Constitution and awarded damages for the unauthorized use of her image in the Respondent's advertising, guided by comparable authorities. Judgment was entered for the Claimant: Kshs 3,439,944.00 in total, comprising notice pay, four months' compensatory damages, unpaid salary, underpayments, leave pay, image-use damages and fair labour practice compensation, with interest and costs, and an order for a Certificate of Service within 30 days.

Key legal issues

#
01

Whether the Claimant was constructively dismissed

Holding

Yes - the Respondent's persistent underpayment of salary amounted to repudiation of a fundamental term, going to the root of the contract

Reasoning

The Claimant exhibited Mpesa statements, bank statements and payment vouchers showing sporadic and incomplete salary payments. The Respondent did not file a Defence, so the evidence was uncontroverted. The duty to pay full wages is a cardinal rule captured under Section 17(1) of the Employment Act. The underpayment breached both the contract and the statute, showing the Respondent no longer intended to be bound by essential terms, entitling the Claimant to treat herself as constructively dismissed.

p. 4
02

Whether the Respondent violated the Claimant's right to fair labour practices

Holding

Yes - the unexplained underpayment without lawful justification violated Article 41(1) of the Constitution

Reasoning

The court found that the Respondent underpaid the Claimant's salary without lawful justification, constituting an unfair labour practice and a violation of Article 41(1) of the Constitution. The conduct exposed her to pecuniary embarrassment and attendant consequences, justifying compensation of Kshs 500,000.

p. 5
03

Whether the Respondent's unauthorized use of the Claimant's image attracts damages

Holding

Yes - general damages of Kshs 1,300,000 awarded, guided by comparable awards

Reasoning

The Claimant exhibited the Respondent's brochures and pamphlets bearing her images used in advertisements without her prior consent. The evidence was uncontroverted. The court considered comparable awards in Ann Njoki Kumena v KTDA Agency Ltd (Kshs 1,500,000), N W R & another v Green Sports Africa Ltd (Kshs 750,000) and Wangechi Waweru Mwende v Tecno Mobile Limited (Kshs 500,000) in assessing damages at Kshs 1,300,000.

p. 4

Legal principles established

#
  • Constructive dismissal arises where the employer's breach of a fundamental term of the employment contract goes to the root of the contract, entitling the employee to treat herself as discharged
  • An employer must pay the entire amount of wages earned by an employee; underpayment constitutes breach of both contract and a mandatory statutory provision

Court orders

#
  1. 1.A declaration that the Claimant was constructively dismissed from employment by the Respondent hence was unfairly terminated
  2. 2.A declaration that the Respondent violated the Claimant's right to fair labour practices
  3. 3.One month's salary in lieu of notice of Kshs 150,000.00
  4. 4.Compensatory damages of Kshs 600,000.00 equivalent to four months' gross salary
  5. 5.Kshs 200,000.00 being unpaid salary for August and September 2021
  6. 6.Kshs 637,444.00 being salary underpayments from October 2021 to March 2022
  7. 7.Kshs 52,500.00 being unpaid leave for six months
  8. 8.Kshs 1,300,000.00 compensation for unauthorized use of her image
  9. 9.Kshs 500,000.00 compensation for breach of the right to fair labour practices
  10. 10.Total award of Kshs 3,439,944.00 with interest at court rates from the date of judgment until payment in full
  11. 11.Certificate of Service to be issued within 30 days of the judgment
  12. 12.Costs of the suit to the Claimant

Authorities

#

Legislation

  • Employment ActSection 17(1)
  • Employment Act, 2007Section 49
  • Employment ActSection 51(1)
  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Herbert Wafula Waswa v Kenya Wildlife Services
    (2020) eKLR
  • Godfrey Allan Tolo v Tobias O. Otieno & another
    (2022) eKLR
  • John Kiningi v Damco Logistics Limited
    (2021) eKLR
  • Coca cola East & Central Africa Limited vs Maria Kagai Ligaga
    [2015] eKLR
  • Western Executive (ECC) Limited v Sharp
    [1978] 1 CR 222
  • Ann Njoki Kumena v KTDA Agency Ltd
    [2019] eKLR
  • N W R & another v Green Sports Africa Ltd & 4 others
    [2017] eKLR
  • Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party)
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 41(1) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Diella v Jet Spa Limited (Cause E642 of 2022) [2024] KEELRC 356 (KLR)", Case Analysis (2024). Cause No E642 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/356/eng@2024-02-23

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