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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 1646 (KLR)

Wachira v Vibe Lounge Limited (Cause E956 of 2022) [2024] KEELRC 1646 (KLR)

Employment and Labour Relations Court
24 June 2024
841 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that sidelining a manager on indefinite leave without explanation was constructive dismissal, awarding him salary, notice pay, compensation and costs.

What this practically means

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Executive summary

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The Claimant, employed as general manager of the Respondent in March 2022 on a monthly salary of Kshs. 100,000/- plus allowances, sued on 22nd December 2022 alleging that the Respondent stopped paying his salary from August 2022 while he continued working. On 25th October 2022 he was asked via a message in the finance group to take one week off pending notification to resume, but he was replaced, found someone at his desk upon resumption in November 2022, and the Respondent refused to engage him or his advocate in correspondence. The Respondent did not enter appearance or file a defence despite service, and the suit proceeded to formal proof, with the Claimant testifying on 14th May 2024. No submissions were filed. Applying the Court of Appeal's constructive dismissal principles in Coca Cola East and Central Africa Limited v Maria Kagai Ligaga [2015] eKLR, the court held that the indefinite leave, replacement of the Claimant and refusal to communicate amounted to a repudiatory breach of the employment contract, hence constructive dismissal, with no cause for separation availed. The court allowed the claim and awarded Kshs. 440,000/- as salary for August–November 2022, Kshs. 110,000/- as one month's notice pay, Kshs. 220,000/- as two months' compensation, a certificate of service, interest at court rates from the date of judgment until payment in full, and costs of the suit. Judgment was delivered at Nairobi on 24th June 2024 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Whether the Claimant's treatment amounted to constructive dismissal

Holding

Yes - the employer's conduct constituted a repudiatory breach going to the root of the contract

Reasoning

The court applied the Coca Cola v Ligaga principles on constructive dismissal. The Claimant was sent on a one-week leave at the employer's behest, was replaced in his position, and the Respondent refused to engage in any communication despite the Claimant's efforts. No valid cause for separation was availed. This amounted to a repudiatory breach, and an employer could have properly separated with the employee if cause existed; none was shown.

p. 2
02

What remedies flow from the constructive dismissal

Holding

Salary arrears for August–November 2022, one month's salary in lieu of notice, two months' salary as compensation, certificate of service, interest and costs

Reasoning

Having found constructive dismissal, the court awarded unpaid salary for the period worked without pay, notice pay equivalent to one month's salary, compensation of two months' salary, a certificate of service, interest on the monetary awards from the date of judgment, and costs of the suit.

p. 2

Legal principles established

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  • The refusal to recall an employee after a leave of absence at the employer's behest, coupled with refusal to engage the employee in communication despite his efforts, amounts to a repudiatory breach of the employment contract constituting constructive dismissal.

Court orders

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  1. 1.Salary for August – November 2022 – Kshs. 440,000/-
  2. 2.One month's salary as notice – Kshs. 110,000/-
  3. 3.2 months salary as compensation – Kshs. 220,000/-
  4. 4.Certificate of service
  5. 5.Interest at court rates on the sums in (a), (b) and (c) above from date of judgment till payment in full
  6. 6.Costs of the suit
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Wachira v Vibe Lounge Limited (Cause E956 of 2022) [2024] KEELRC 1646 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1646/eng@2024-06-24

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