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ELRCPartially AllowedCause No E835 of 2021· [2024] KEELRC 569 (KLR)

Waweru v Triple Edge Media Limited (Cause E835 of 2021) [2024] KEELRC 569 (KLR)

Employment and Labour Relations Court
14 March 2024
2,450 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to find constructive dismissal where an employee delayed complaining about unpaid wages, but still awarded the admitted salary arrears.

What this practically means

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Executive summary

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The Claimant, employed as Creative Services Manager on a three-year fixed-term contract from June 2016 at Kshs.165,389 per month, sued for a declaration of unfair labour practices and constructive dismissal, compensation, salary arrears, pay in lieu of notice, leave days, service pay, interest and costs. The Respondent neither filed a response nor tendered evidence, leaving the Claimant's evidence uncontroverted. The court framed two issues: whether the employment was constructively terminated and whether the reliefs were due. It held that although the written contract lapsed by effluxion of time in mid-2019, the Claimant continued working and being paid, so the contract was renewed by conduct on similar terms; the Respondent's refusal to execute the Claimant's proposed Service Level Agreement therefore breached nothing and was neither an unfair labour practice nor constructive dismissal. On the admitted salary arrears, the court accepted that non-payment of wages is a repudiatory breach, but found the Claimant had acquiesced in the breach from 2017 to 2020 and was estopped from alleging constructive dismissal, besides failing to show when he resigned in response. Judgment was entered for the Claimant only for salary arrears of Kshs.561,644.80, with costs and interest at court rates from the date of judgment; the declaratory, compensation, notice pay, leave and service pay claims were declined for want of proof, service pay being barred by the contributory pension scheme under Section 35(6)(c) of the Employment Act.

Key legal issues

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01

Whether refusal to sign a Service Level Agreement amounted to constructive dismissal

Holding

No - a subsisting contract on similar terms existed by conduct, and alteration of terms had to be mutual; the Respondent was merely expressing its view on a new proposal.

Reasoning

The fixed-term contract lapsed by effluxion of time but the Claimant continued working and being paid, evidencing consensus ad idem and renewal on similar terms. Since terms were mutually agreed through conduct, the Respondent was free to decline a new proposal without committing unfair labour practice or constructive dismissal.

p. 4
02

Whether non-payment of salary arrears constituted constructive dismissal

Holding

Non-payment is a repudiatory breach running to the root of the contract, but the Claimant waived/acquiesced in the breach over 2017-2020 and is estopped from alleging constructive dismissal.

Reasoning

Non-payment of wages qualifies as repudiatory breach, but courts must interrogate the employee's conduct for waiver, acquiescence or delay. The breach started in 2017, persisted in 2018 and recurred in 2020; by 2020 the Claimant was accustomed to it and acquiesced. He also never indicated when he resigned in response to the breach.

p. 5
03

Entitlement to terminal dues in an undefended claim

Holding

Only salary arrears of Kshs.561,644.80 proved and awarded; notice pay, leave and service pay claims failed for want of evidence, and service pay was barred by the contributory pension scheme.

Reasoning

An undefended claim still requires the claimant to prove entitlement. The Respondent admitted arrears by email dated 26th August 2020, so those were awarded as prayed. No evidence supported notice pay or leave; service pay was disentitled under Section 35(6)(c) of the Employment Act because of the contributory pension scheme and no proof NSSF was not remitted.

p. 5

Legal principles established

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  • An agreement need not be in writing; it may be oral, written or implied from the conduct of the parties, and a fixed-term contract renewable by mutual consent may be renewed by conduct.
  • A party serving under mutually agreed terms cannot unilaterally alter them; an employer's refusal of an employee's new proposal is not constructive dismissal where a subsisting contractual relationship exists.
  • Failure by an employer to pay wages as and when earned is a repudiatory breach entitling the employee to treat himself as discharged, but the employee must not waive, acquiesce or delay.
  • A claimant in an undefended suit still bears the burden of proof on a preponderance of probabilities.

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent for salary arrears of Kshs.561,644.80.
  2. 2.Costs of the suit awarded to the Claimant.
  3. 3.Interest at court rates from the date of judgment till payment in full.

Authorities

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Legislation

  • Employment Act, 2007Section IV (protection of wages); Section 35(6)(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d); Article 48

Cases cited (7)

  • Douglas Omunyin Otungu V Board of Trustees, Redeemed Christian Church of God
    (2022) eKLR
  • Western Excavating ECC Ltd V Sharp
    (1978) 2 WLR 344
  • Coca Cola East & Central Africa Ltd V Maria Kagai Ligaga
    (2015) eKLR
  • Gateway Insurance Co. Ltd v Jamila Suleiman & another
    [2018] eKLR
  • Trust Bank Ltd v Paramount Universal Bank Ltd
    [2002] eKLR
  • Peter Ngigi & another v Thomas Ondiki Oduor & another
    [2019] eKLR
  • Humphrey Munyithia Mutemi v Soluxe International Group of Hotels & Lodges Ltd
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (original employment dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Waweru v Triple Edge Media Limited (Cause E835 of 2021) [2024] KEELRC 569 (KLR)", Case Analysis (2024). Cause No E835 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/569/eng@2024-03-14

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