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ELRCPartially AllowedNot stated in the judgment (appeal from Mavoko ELRC No. 64 of 2020)· [2025] KEELRC 119 (KLR)

Matuku v Lex Oilfield Solutions Limited (Employment and Labour Relations Appeal E003 of 2022) [2025] KEELRC 119 (KLR)

Employment and Labour Relations Court
23 January 2025
4,424 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Appellant, formerly the Claimant in Mavoko ELRC No. 64 of 2020, appealed against the judgment of Hon. Bernard Kasavuli (Principal Magistrate) delivered on 28th February 2022, which dismissed his claims for constructive dismissal, underpayment, house allowance, accrued leave and service pay with costs. He was employed as a truck driver from 12th October 2017 and promoted to driver mentor in 2019. On 23rd December 2019 he was injured in the course of duty when a machine exploded while offloading cement, hospitalising him for four days. The Respondent paid his medical bills only up to 3rd January 2020, withheld his salary for January, February and March 2020, and never issued a notice to show cause for the alleged absconding. Allowing the appeal, M. Onyango, J restated the duty of a first appellate court to re-evaluate evidence (Peters v Sunday Post; Selle v Associated Motor Boat Co.), and relying on Mombasa Coffee Limited v Shuke and Richard Kiplimo Koech v Yuko Supermarket Ltd, held that an employer alleging absconding must issue a show-cause notice or make efforts to contact the employee. The Court found the Appellant's absence had lawful cause and that the unexplained withholding of salary amounted to constructive dismissal. The trial judgment was set aside and substituted with awards of Kshs. 228,870 as 6 months' compensation, Kshs. 208,869 as underpayments, Kshs. 67,029 as accrued leave and Kshs. 114,435 as unpaid salary for January to March 2020, with costs of the appeal and trial to the Appellant and interest as specified. Severance and service pay were refused.

Key legal issues

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01

Whether the Appellant was constructively dismissed

Holding

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

Reasoning

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.

p. 7
02

Whether the trial court erred in finding the Appellant had deserted duty

Holding

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)

Reasoning

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.

p. 7
03

Entitlement to compensation, underpayments, leave and unpaid salary

Holding

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)

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Appeal is allowed
  2. 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. 3.The costs of this appeal and in the Trial Court are awarded to the Appellant
  4. 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

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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, "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.