Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment as provided· [2025] KEELRC 1129 (KLR)

Muchina & another v Lopage Pr Limited (Employment and Labour Relations Cause E377 of 2022) [2025] KEELRC 1129 (KLR)

Employment and Labour Relations Court
26 March 2025
DMD. K. NJAGI MARETE
3,363 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer that fails to pay salaries can't dismiss workers for poor performance - the court ruled both terminations unlawful and awarded over KShs 2 million.

What this practically means

#

Executive summary

#
Two claimants sued their former employer for wrongful and unfair termination, unpaid salaries, pay in lieu of notice, unremitted statutory deductions and certificates of service. The 1st Claimant, employed as General Manager from 2nd August 2021 on a net salary of Kshs.200,000, was unpaid for three months and, after demanding her arrears, was subjected to a disciplinary process she described as predetermined and sham, prompting her resignation; she claimed constructive dismissal. The 2nd Claimant, employed as Accounts Manager from 3rd May 2021 on a gross salary of Kshs.115,000, went unpaid for five months and was summarily dismissed on 6th October 2021 for alleged poor performance without notice or hearing. The Respondent admitted owing unpaid dues but maintained the 1st Claimant resigned voluntarily mid-disciplinary process and that the 2nd Claimant, being on probation, was only entitled to seven days' wages in lieu of notice. The court held that the Respondent's non-payment of salaries and related misconduct constituted a fundamental breach of both contracts, finding unlawful termination of both Claimants' employment and awarding the 1st Claimant Kshs.1,392,709.65 (three months' salary arrears, one month's notice pay and one month's compensation) and the 2nd Claimant Kshs.690,000 (four months' salary arrears, notice pay and one month's compensation). The judgment proceeds directly from submissions to disposition without reasoned analysis, and makes no costs order.

Key legal issues

#
01

Whether the 1st Claimant was constructively dismissed

Holding

The court found constructive/unlawful termination, holding that non-payment of salaries and the Respondent's conduct amounted to fundamental breach of contract.

Reasoning

The 1st Claimant was employed on 2nd August 2021 and not paid for three months; she was issued a notice to show cause after persistently demanding her salary, and the Respondent failed to produce her contract or key performance indicators. The court concluded that the non-payment of salaries and other misconduct formed a fundamental breach, entitling her to the relief sought.

p. 7
02

Whether the 2nd Claimant, a probationary employee, was lawfully dismissed without notice or hearing

Holding

The dismissal was unlawful; the court rejected the defence that a probationary employee is not entitled to procedural protections, awarding her salary arrears, notice pay and compensation.

Reasoning

The 2nd Claimant was dismissed on 6th October 2021 for alleged poor performance without notice, a hearing or any performance improvement program, and without the Respondent producing her contract or performance records. The court found the Respondent's conduct formed a fundamental breach of her contract and held the termination unlawful, awarding four months' salary arrears, one month's notice pay and one month's compensation.

p. 7

Legal principles established

#
  • Non-payment of salaries and related employer misconduct constitutes a fundamental breach of the employment contract amounting to unlawful termination
  • On a finding of unlawful termination, the claimant becomes entitled to the relief sought

Court orders

#
  1. 1.Declaration (implicit finding) that the termination of both Claimants' employment was unlawful
  2. 2.1st Claimant awarded salary for three months of Kshs.835,025.79
  3. 3.1st Claimant awarded one month's salary in lieu of notice of Kshs.278,341.93
  4. 4.1st Claimant awarded one month's salary as compensation for unlawful termination of Kshs.278,341.93; total Kshs.1,392,709.65
  5. 5.2nd Claimant awarded salary for four months of Kshs.460,000.00
  6. 6.2nd Claimant awarded one month's salary in lieu of notice of Kshs.115,000.00
  7. 7.2nd Claimant awarded one month's salary as compensation for unlawful termination of Kshs.115,000.00; total Kshs.690,000.00

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 41 (labour rights); Article 24 (limitation of rights)
  • Employment Act, 2007Sections 9(2), 10(7), 19(1), 35, 41, 42(1), 42(4), 43(1), 45(1), 45(2), 47(5), 49
  • Evidence Act, Chapter 80Section 112

Cases cited (13)

  • Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party)
    [2021] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Manyinsa v Lavington Security Limited
    (Civil Appeal 55 of 2019) [2023] KECA 1376 (KLR)
  • Kamau v Delta Point Distributors Limited t/a Milele Lounge
    (Appeal E045 of 2022) [2023] KEELRC 1161 (KLR)
  • Yaa v SGA Security Solutions Limited
    (Employment and Labour Relations Appeal E002 of 2022) [2022] KEELRC 1553 (KLR)
  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010; (2010) LLR 255 (ICK)
  • Thaiya v Twiga Foods Limited
    (Cause 15 of 2020) [2023] KEELRC 1960 (KLR)
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Kenfreight (EA) Limited v Benson K Nguti
    [2016] eKLR
  • Manyaki v Njuca Consolidated Company Limited
    (Appeal E031 of 2023) [2023] KEELRC 2376 (KLR)
  • Kenya Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Danish Jalang'o & another v Amicabre Travel Services Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (specific enabling provision not stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muchina & another v Lopage Pr Limited (Employment and Labour Relations Cause E377 of 2022) [2025] KEELRC 1129 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1129/eng@2025-03-26

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