Okewe v Kenol Kobil Limited (Cause 608 of 2019) [2024] KEELRC 416 (KLR)
The bottom line
#An employer who stops paying an employee without valid reason risks a constructive dismissal finding and can be ordered to pay compensation, costs, and interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
Yes - withholding salary for almost two months while he was on 'compulsory leave' pending investigations was a repudiatory breach causally linked to his resignation
Applying the Coca Cola v Maria Kagai Ligaga criteria, the Court found the Respondent breached the fundamental term that an employee be paid for work done. The Respondent had no valid reason to withhold salary for April and May 2017; leave is payable; the protracted unexplained 'investigations' left the employee unsure of his status. An objective test shows the breach went to the root of the contract, and the resignation directly followed, satisfying causation.
Whether the Claimant was entitled to unpaid salary, notice pay and compensation
Yes - unpaid salary of Kshs. 354,597.50, notice pay of Kshs. 172,425/- and 3 months' salary as compensation of Kshs. 517,275/-
The Respondent admitted in its amended Defence and through its witness that the April, May and 5 days of June 2017 salary remained unpaid. Having found constructive dismissal amounting to unfair termination, the Court awarded one month's notice pay and three months' gross salary as compensation under the Employment Act framework, plus interest and costs.
Whether the claims for leave days and entertainment expenses succeeded
No - the leave claim failed because the days were forfeited as notice, and the expense claims failed for want of evidence
The Respondent's position, uncontroverted by documentary evidence from the Claimant, was that the accrued leave days were deducted as payment in lieu of the contractual notice the Claimant did not give upon his same-day resignation. The travelling and entertainment/handover claims for March and April 2017 were unsupported by any receipts or records and therefore could not be allowed.
Legal principles established
#- Withholding an employee's salary without valid justification is a repudiatory breach going to the root of the employment contract capable of founding constructive dismissal
- An employee on leave is entitled to pay
Court orders
#- 1.Unpaid salary for April and May 2017 as well as 5 days worked in June 2017 – Kshs. 354,597.50
- 2.One month's salary in lieu of notice – Kshs. 172,425/-
- 3.3 months' salary compensation for unfair termination – Kshs. 517,275/-
- 4.Costs of the suit to the Claimant
- 5.Interest at court rates on the sums in (a), (b) and (c) from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okewe v Kenol Kobil Limited (Cause 608 of 2019) [2024] KEELRC 416 (KLR)", Case Analysis (2024). Cause No 608 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/416/eng@2024-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.