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ELRCPartially AllowedNot stated in the judgment text (memorandum of claim dated 16th February 2021)· [2025] KEELRC 540 (KLR)

Achieng v Agimba & another (Cause E180 of 2021) [2025] KEELRC 540 (KLR)

Employment and Labour Relations Court of Kenya
27 February 2025
CBC. N. Baari
3,600 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that COVID-19 pay cuts are only valid if employees actually agreed in writing, awarding an employee her withheld half salaries.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent firm from 3rd September 2019, sued for unpaid half salaries for March, April and May 2020, payment in lieu of accrued leave, remittance of NHIF, NSSF and PAYE deductions to the relevant statutory bodies, general damages and costs. She alleged that no written contract was ever executed, that her salary was halved without consent following the COVID-19 pandemic, that salaries were delayed, and that statutory deductions were never remitted. The Respondent denied the claim, asserting the Claimant was still on probation, performed poorly, absconded duty, and that a staff meeting had agreed a pay cut during the lockdown; it also explained non-remittance of deductions by its transition from a sole proprietorship to a limited liability company and asserted that a gross consolidated salary had been paid. The court framed two issues: entitlement to remedies and costs. It declined to determine constructive dismissal, which the Claimant had never pleaded. It found the Claimant entitled to the withheld half salaries for March and April 2020 (Kshs. 60,000), the Respondent having led no credible evidence of an agreed pay cut for those months, but rejected the May 2020 claim on the Claimant's admission of agreeing to half pay. The statutory deductions claim failed as deductions are not the employee's property, and the Kshs. 600,000 heads failed as not available in a civil claim under the Employment Act. The claim partly succeeded, with costs of the suit awarded to the Claimant plus interest from the date of judgment until payment in full. Judgment was delivered on 27th February 2025 by C. N. Baari, Judge.

Key legal issues

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01

Whether the Respondent was entitled to withhold half of the Claimant's salary for March and April 2020 on account of the COVID-19 pandemic

Holding

The Respondent was liable to pay the withheld half salaries for March and April 2020 as there was no agreement or communicated resolution for half pay in those months

Reasoning

Section 17(1) of the Employment Act requires payment of the full wages earned. The Respondent's defence of an agreed pay cut and a banking discrepancy was unsupported by evidence; no minutes of staff meetings were produced and no evidence showed payment after the banking issue was resolved. Consultation with employees is required to alter contractual terms, and agreement is not mandatory. Only May 2020 half pay was admitted by the Claimant.

p. 7
02

Whether the Claimant could recover statutory deductions (NHIF, NSSF, PAYE) from the Respondent

Holding

The claim failed because statutory deductions accrue to the statutory bodies and the Claimant did not controvert receiving gross salary

Reasoning

The Respondent explained that it paid a gross consolidated salary due to its transition from a sole proprietorship to a limited liability company. The Claimant did not controvert receipt of gross salary. Statutory deductions belong to the entities on whose behalf they are deducted, and the relevant laws provide modalities for their recovery; the employee cannot claim them personally.

p. 7
03

Whether the Claimant was entitled to Kshs. 600,000 for failure to issue written particulars, itemized pay statement and wilful non-payment of wages

Holding

These heads failed as they are not available in a civil claim and are not envisaged under Section 49 of the Employment Act

Reasoning

Other than repayment of remuneration wrongfully deducted, the heads claimed are not recoverable in a civil claim. Section 17(10) of the Employment Act provides Kshs. 100,000 as a penalty for failure to pay an employee, which is a penalty and not money awardable to an employee. The claims therefore lack a legal foundation.

p. 7
04

Whether constructive dismissal arose

Holding

The issue did not arise because the Claimant never pleaded constructive dismissal or unfair termination; she resigned to pursue other interests

Reasoning

Although the Respondents addressed constructive dismissal extensively, the Claimant's own case was that she resigned lawfully and procedurally on 15th July 2020 to pursue her Masters' education and other personal interests, not for breach of contract. The court therefore declined to determine constructive dismissal.

p. 5

Legal principles established

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  • A reduction of salary is valid only where the employer communicates it to the employee and the employee accepts it; salary is a fundamental term of employment and cannot be reduced arbitrarily or unilaterally.
  • An employee on probation is entitled to the same employment benefits as any other employee.
  • Statutory deductions belong to the recipient statutory bodies, not the employee, who cannot claim them.

Court orders

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  1. 1.That the Respondents pay the Claimant half salaries withheld in the months of March and April, 2020 in the sum of Kshs. 60,000/-
  2. 2.The Claimant is awarded the costs of the suit plus interest from the date of judgment until payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1)
  • Employment Act, 2007 (Cap 226)Section 17(1)
  • Employment Act, 2007 (Cap 226)Section 17(10)
  • Employment Act, 2007 (Cap 226)Section 49

Cases cited (3)

  • Kiboko v Osteria Group (Kenya) Limited
    (Cause E023 of 2022) [2023] KEELRC 2700 (KLR)
  • Mark Mugavi Okani v Eveready Security Guards
    [2019] eKLR
  • Ibrahim Kamasi Amoni v Kenital Solar Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment Act, Cap 226 (claim for employment benefits and statutory deductions)

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, "Achieng v Agimba & another (Cause E180 of 2021) [2025] KEELRC 540 (KLR)", Case Analysis (2025). Not stated in the judgment text (memorandum of claim dated 16th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/540/eng@2025-02-27

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