Matuku v Lex Oilfield Solutions Limited (Employment and Labour Relations Appeal E003 of 2022) [2025] KEELRC 119 (KLR)
The bottom line
#A Kenyan court ruled that withholding an injured worker's salary without explanation was unfair constructive dismissal, awarding him over Kshs. 600,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant was constructively dismissed
Yes - the Respondent withheld his salary for January to March 2020 without explanation and failed to issue a show-cause notice or communicate its position, amounting to constructive dismissal and unfair termination
The Respondent knew the Appellant was injured in the course of duty, paid medical bills only up to 3rd January 2020, then withheld three months' salary without explanation and made no show-cause notice. The demand letter raising non-payment was never answered and the Respondent never controverted the Appellant's evidence. Silence from an employer is construed in the employee's favour.
Whether the trial court erred in finding the Appellant had deserted duty
Yes - the absence was with lawful cause (work injury known to the employer), and no notice to show cause was issued as required by sections 41 and 44(4)(a)
Section 44(4)(a) permits summary dismissal for absence without leave or lawful cause, but the employer knew of the accident. Absconding is misconduct requiring a section 41 hearing, and the employer must show attempts to reach the employee. The evidence pointed to no show-cause notice; the WhatsApp messages were not in the record of appeal.
Entitlement to compensation, underpayments, leave and unpaid salary
Awarded 6 months' salary as compensation (Kshs. 228,870), underpayments (Kshs. 208,869), accrued leave of 53.75 days (Kshs. 67,029) and unpaid salary for January-March 2020 (Kshs. 114,435)
Having been unfairly terminated, compensation was assessed under section 49(4) considering length of service and manner of termination. Wage order rates showed underpayment against the minimum wage for heavy commercial drivers. No evidence controverted the leave claim. Unpaid salary was not contested.
Legal principles established
#- An employer alleging that an employee absconded duty must demonstrate the action taken, including issuing a show-cause notice or making efforts to contact the employee
- Withholding an employee's salary without formally communicating the reason amounts to constructive dismissal
- An employer must at all times clearly communicate its position to an employee, failing which the non-action is interpreted in favour of the employee
- Duty of the first appellate court to re-evaluate evidence and draw its own conclusions while allowing for the trial court's advantage of seeing and hearing witnesses
Court orders
#- 1.The Appeal is allowed
- 2.The Judgment and Decree of Hon. Bernard Kasavuli (Principal Magistrate) is set aside and substituted by an award of: Compensation Kshs. 228,870; Underpayments Kshs. 208,869; Annual leave Kshs. 67,029; Salary for January, February and March, 2020 Kshs. 114,435
- 3.The costs of this appeal and in the Trial Court are awarded to the Appellant
- 4.Interest shall accrue from date of judgment on item (i) and from date of lower court judgement on items (ii) to (iv)
- On appeal from
- Principal Magistrate's Court (Mavoko), Employment and Labour Relations Court No. 64 of 2020
- Mavoko ELRC No. 64 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court Act; appeal against judgment of Principal Magistrate)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matuku v Lex Oilfield Solutions Limited (Employment and Labour Relations Appeal E003 of 2022) [2025] KEELRC 119 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Mavoko ELRC No. 64 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/119/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.