Njonjo v Dac Aviation (Ea) Ltd & another (Cause E235 of 2021) [2025] KEELRC 956 (KLR)
The bottom line
#A Kenyan court ruled that failing to pay an employee's salary in full forced her to resign, entitling her to compensation as if she had been unfairly fired.
What this practically means
#Executive summary
#Key legal issues
#Whether withholding part of the Claimant's salary constituted constructive dismissal
Yes - the perennial withholding of part of the salary for September to December 2018 created an intolerable work environment amounting to fundamental breach, so the Claimant's resignation was treated as constructive and unfair termination by the employer
The court found an employment relation from 8 January 2014 and promotion to Captain in 2016. The Claimant's uncontroverted testimony was that part of her salary (the USD cash component) went unpaid for several months, she was detained at a hotel in Somalia over unpaid bills, and she was denied Dash 8 flying duties despite qualifying. Applying the constructive dismissal doctrine, the court held that non-payment of salary was a fundamental breach entitling her to resign and plead constructive dismissal.
The appropriate compensation for the unfair termination
Five months' gross salary (Ksh. 1,237,400.00), not the twelve months sought, given the short employment relation and the Claimant's subsequent re-employment
Although the Claimant sought twelve months' compensation, the court exercised discretion under the fair-termination framework, considering that the parties had not been in the employment relation for long and that the Claimant secured alternative employment after resigning. It awarded five months' gross salary computed at Ksh. 247,480 per month.
Whether the Claimant was entitled to notice pay
No - the Claimant herself resigned with immediate effect without giving the one month's notice required under section 35 of the Employment Act, so her award was reduced by Ksh. 247,480.00
The court applied sections 35 and 36 of the Employment Act. Since the Claimant's resignation letter of 7 January 2019 took effect immediately, the statutory obligation to give (or pay in lieu of) one month's notice lay with her, not the employer. In the absence of evidence that she paid notice to the employer, the court set off the equivalent amount against her award.
Whether the court could award unpaid salary for December 2018
No - the claim for December 2018 was unpleaded and the court limited recovery to September, October and November 2018 (USD 7,260)
The Claimant's advocate amended the witness statement mid-trial to add the December 2018 claim but did not amend the Statement of Claim. The court held that parties are bound by their pleadings and declined to make any determination on the unpleaded December salary, entertaining only the pleaded three months.
Legal principles established
#- Constructive dismissal arises where an employee resigns because of intolerable working conditions created by the employer; the resignation is then treated as a termination by the employer
- Perennial failure to remunerate an employee, wholly or in part, renders the work environment intolerable and is a fundamental breach of contract entitling the employee to resign and plead constructive dismissal
- A certificate of service is an entitlement of every individual who exits employment
Court orders
#- 1.Finds and declares that the 1st Respondent constructively dismissed the Claimant from her employment
- 2.Declares that dismissal of the Claimant from employment was unfair
- 3.Awards compensation for unfair termination equivalent to five months' gross salary, Ksh. 1,237,400.00
- 4.Awards unpaid salary for September, October and November 2018 totaling USD 7,260
- 5.Declines to award pay in lieu of notice; directs that the award be reduced by Ksh. 247,480.00 on account of the Claimant's failure to give one month's notice under section 35 of the Employment Act
- 6.Orders the Respondents to issue the Claimant with a Certificate of Service
- 7.Orders that the amounts awarded are subject to applicable statutory deductions
- 8.Awards interest on the amount awarded at court rates from the date of the decision
- 9.Awards the Claimant costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; ELRC Procedure Rules referenced)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njonjo v Dac Aviation (Ea) Ltd & another (Cause E235 of 2021) [2025] KEELRC 956 (KLR)", Case Analysis (2025). Cause No E235 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/956/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.