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ELRCPartially Allowed· [2024] KEELRC 1350 (KLR)

Mbaya v Murban Movers Limited (Cause E334 of 2023) [2024] KEELRC 1350 (KLR)

Employment and Labour Relations Court
6 June 2024
3,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that months of unpaid salary forced an employee to resign, awarding her over Kshs. 1.4 million as compensation for constructive dismissal.

What this practically means

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Executive summary

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The Claimant, formerly Human Resource and Administration Manager of the Respondent under a contract dated 10th September 2020, sued for constructive dismissal and unfair labour practice. She resigned on 8th December 2021 citing harsh working conditions, notably unpaid salaries for September to November 2021, hostility among employees, withdrawal of medical covers and other unilateral changes. She was re-engaged on renegotiated terms in January 2022 but resigned again on 4th July 2022 after going without salary for months, complaining of financial and emotional distress. The Respondent attributed the delays to Covid-19-induced cashflow problems, contended the resignations were voluntary and uncited, and argued no employer obligation existed to fund her HR practising certificate. The court framed three issues: constructive dismissal, wrongfulness of termination, and entitlement to reliefs. Applying the Court of Appeal's principles in Coca Cola v Maria Kagai Ligaga and the Black's Law Dictionary definition of constructive discharge, the court found a causal link between the salary non-payment and the resignation, holding the Claimant's courteous thank-you in her resignation letter did not detract from the frustration forcing her out. General damages for emotional distress failed for want of medical records. The court awarded withheld July 2022 salary of Kshs. 128,000, unpaid August 2022 dues of Kshs. 23,466.70, and compensation of ten months' salary (Kshs. 1,280,000) under section 49 of the Employment Act, taking the parties' conduct into account, plus costs and interest at court rates from the date of judgment. Judgment was delivered at Nairobi on 6th June 2024 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

Yes - the delayed payment of salary for months and the withholding of benefits created conditions leaving her no choice but to resign; the court applied the Coca Cola v Ligaga principles and found a classic case of constructive dismissal

Reasoning

The court applied the Court of Appeal's principles in Coca Cola East and Central Africa Ltd v Maria Kagai Ligaga, noting a causal link between the employer's failure to pay salaries (the fourth month without pay by June 2022) and the resignation. The Black's Law Dictionary definition of constructive discharge captured her situation. Her courtesy in thanking the employer did not waive the repudiatory breach.

p. 7
02

Whether the resignation, tendered twice without stated reasons, was voluntary

Holding

No - despite the absence of stated reasons and words of thanks, the surrounding emails evidenced distress and the resignation was the effective result of the employer's conduct

Reasoning

The court examined the Claimant's email of 27th June 2022 in which she sought overdue salary, said she was affected financially and emotionally, and felt the Respondent was intentionally withholding benefits to frustrate her out of employment. The court held the thank-you did not detract from the frustration forcing her to resign, distinguishing cases of voluntary resignation relied on by the Respondent.

p. 7
03

What remedies flow from the finding of constructive dismissal

Holding

Withheld July 2022 salary, unpaid August 2022 dues, and 10 months' salary compensation under section 49 of the Employment Act, plus costs and interest

Reasoning

Relying on the principle in D.K Njagi Marete v Teachers Service Commission that remedies must be proportionate and not unjustly enriching, the court fixed compensation at 10 months' salary under section 49, factoring in the conduct of parties and the absence of proof of medical records for emotional distress. Monetary claims for unpaid salary were awarded as pleaded.

p. 7

Legal principles established

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  • Non-payment of salary for successive months constitutes a repudiatory breach that can amount to constructive dismissal even where the employee resigns politely and thanks the employer
  • In awarding compensation under section 49 of the Employment Act a court must take into account the conduct of the parties

Court orders

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  1. 1.Kshs. 128,000/- being withheld salary July 2022
  2. 2.Unpaid salary for days worked in August 2022 – Kshs. 23,466.70
  3. 3.Compensation for unlawful dismissal of 10 months salary – Kshs. 1,280,000/-
  4. 4.Costs of the suit
  5. 5.Interest on the sums awarded at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • The Human Resource Management Professional (Registration and Training) Regulationssection 7
  • Employment Actsection 45(1)
  • Employment Actsection 49
  • Evidence Act, Cap 80 Laws of Kenyasections 107 and 108
  • Human Resource Management Professionals Act, No. 52 of 2012section 29

Cases cited (12)

  • Coca Cola East and Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Micah Kangogo Chelanga v Kenya Farmers Association Ltd
    [2022] eKLR
  • Max Masoud Roshankar & another v Sky Aero Limited
    [2015] eKLR
  • Simon Papa Imo v Athi River Shalom Community Hospital
    [2021] eKLR
  • Western Excavating ECC Ltd v Sharp
    [1978] 2 WLR 344
  • Nathan Ogada Atiagaga v David Engineering Limited
    [2015] eKLR
  • D.K Njagi Marete v Teachers Service Commission
    [2013] eKLR
  • Herbert Wafula Waswa v Kenya Wildlife Services
    [2020] eKLR
  • Muikamba v Radio Africa Group Limited
    (Cause E245 of 2021) [2023] KEELRC 1251
  • Thaiya v Twiga Foods Limited
    (Cause 15 of 2020) [2023] KEELRC 1960
  • Achieng' v Africa Diatomite Industries Limited & another
    (ELRC Cause 13 of 2020) [2023] KEELRC
  • Sophie Muthoni Njagi v Rift Valley Railways (Kenya) Limited
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims (Employment Act, 2007; Labour Relations Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbaya v Murban Movers Limited (Cause E334 of 2023) [2024] KEELRC 1350 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1350/eng@2024-06-06

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