Diella v Jet Spa Limited (Cause E642 of 2022) [2024] KEELRC 356 (KLR)
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
#Key legal issues
#Whether the Claimant was constructively dismissed
Yes - the Respondent's persistent underpayment of salary amounted to repudiation of a fundamental term, going to the root of the contract
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.
Whether the Respondent violated the Claimant's right to fair labour practices
Yes - the unexplained underpayment without lawful justification violated Article 41(1) of the Constitution
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.
Whether the Respondent's unauthorized use of the Claimant's image attracts damages
Yes - general damages of Kshs 1,300,000 awarded, guided by comparable awards
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.
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.A declaration that the Claimant was constructively dismissed from employment by the Respondent hence was unfairly terminated
- 2.A declaration that the Respondent violated the Claimant's right to fair labour practices
- 3.One month's salary in lieu of notice of Kshs 150,000.00
- 4.Compensatory damages of Kshs 600,000.00 equivalent to four months' gross salary
- 5.Kshs 200,000.00 being unpaid salary for August and September 2021
- 6.Kshs 637,444.00 being salary underpayments from October 2021 to March 2022
- 7.Kshs 52,500.00 being unpaid leave for six months
- 8.Kshs 1,300,000.00 compensation for unauthorized use of her image
- 9.Kshs 500,000.00 compensation for breach of the right to fair labour practices
- 10.Total award of Kshs 3,439,944.00 with interest at court rates from the date of judgment until payment in full
- 11.Certificate of Service to be issued within 30 days of the judgment
- 12.Costs of the suit to the Claimant
- 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.