Kwamboka v Symbio Healthcare Limited (Cause E215 of 2022) [2025] KEELRC 1721 (KLR)
The bottom line
#A Kenyan employee claiming Ksh. 16 million lost her case because she accepted her actual salary for years, so the court enforced the lower contract.
What this practically means
#Executive summary
#Key legal issues
#Which was the valid contract - the one providing Kshs. 284,995 or Kshs. 25,000 monthly salary?
The valid contract was the one produced by the respondent providing a monthly salary of Kshs. 25,000 and airtime of Kshs. 3,000.
Two contracts of even date were in contention. The claimant admitted being paid Kshs. 25,000 monthly without fail throughout her employment and never complained. Her own email of 24th October 2023 acknowledged her payroll salary as Kshs. 25,000. The employer produced a police OB report alleging forgery. Applying the balance of probabilities, the court found the respondent's contract more probable, and held that receipt of the resignation letter did not estop the respondent from challenging its contents.
Whether the claimant was constructively dismissed
No. There was no repudiatory breach since the contractual salary was paid and the claimant acquiesced.
Applying the Coca Cola v Ligaga principles, constructive dismissal requires a fundamental/repudiatory breach of essential terms, a causal link to the resignation, and no waiver or acquiescence. The gist of the claim was underpayment, but the court found the contractual salary of Kshs. 25,000 was paid monthly and accepted throughout. The allowance reductions during Covid-19 were fair, rational and responsible temporary measures. Constructive dismissal was therefore not established.
Whether the claimant was entitled to the reliefs sought
No. Having found no constructive dismissal and no underpayment, the monetary reliefs failed; mileage and car-loan claims had no basis.
Since the contractual salary was paid, claims for salary arrears and unfair termination compensation could not lie. Airtime and fuel allowances were work-facilitation allowances reduced during the pandemic with the claimant's knowledge. The mileage went towards the car loan, the car was transferred to the claimant, and she admitted the reimbursement claim was not provided for in the contract. The claim was accordingly dismissed with no order as to costs.
Legal principles established
#- Receipt of a document is not equivalent to admission of its content; it is only evidence of delivery
- Where two conflicting contracts of even date exist, the court determines the valid one on a balance of probabilities, considering the parties' conduct and admissions
- Constructive dismissal requires a repudiatory breach by the employer; an employee who acquiesces to payment conduct over years is estopped from asserting the breach
- There is no statutory time limit for prosecuting criminal offences such as forgery; the Limitation of Actions Act does not apply to criminal acts
Court orders
#- 1.The claim is dismissed as without merit
- 2.Each party to bear own costs in the suit
- 3.The file is marked as closed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claims of constructive dismissal, unfair termination and contractual employment benefits)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ochieng v Africa Mission Andernach & another (Cause E036 of 2025) [2025] KEELRC 2857 (KLR)[2025] KEELRC 2857 (KLR)23 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Kwamboka v Symbio Healthcare Limited (Cause E215 of 2022) [2025] KEELRC 1721 (KLR)", Case Analysis (2025). Memorandum of Claim dated 5th April 2022 (received in court 6th April 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1721/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.