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ELRCPartially AllowedNot stated in the judgment

Kenya Union of Commercial, Food and Allied Workers v Equitorial Nut Processors Limited (Cause E046 of 2024) [2025] KEELRC 2059 (KLR)

Employment and Labour Relations Court
11 July 2025
OMOnesmus N Makau
1,635 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that sending employees home indefinitely on unpaid leave without their consent is the same as unfairly firing them.

What this practically means

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Executive summary

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A registered trade union sued on behalf of nine grievants employed by the respondent on diverse dates in various positions. From August 2023 the grievants were verbally sent on 30 days' leave which was repeatedly extended by SMS, and on 26th September 2023, on reporting back, they were told to remain at home until further notice and their salaries were stopped. The union treated this as termination without valid reason; conciliation failed and the matter was referred to the ELRC at Nyeri. The respondent, though served, neither entered appearance nor filed a defence, and the matter proceeded as an uncontroverted claim by way of pleadings, witness statements, documents and written submissions. The court framed two issues: whether the grievants were constructively dismissed, and whether the reliefs were payable. Holding that constructive dismissal is a judge-made term arising where an employee resigns due to intolerable employer conduct or serious breach, the court found the indefinite unpaid leave without consent amounted to constructive termination, non-payment of salary being a serious breach entitling repudiation, and that constructive dismissal automatically amounts to unfair and unlawful termination under section 45 of the Employment Act. Reinstatement was refused as impracticable. The court awarded each grievant one month's salary in lieu of notice under section 35(1)(c), compensation of ten months' gross salary for those serving below 13 years and twelve months for longer service under section 49(1), and certificates of service under section 51. Claims for underpayment of wages (an unexplained afterthought not aligned to the General Wage Orders) and accrued leave (no particulars and no specific prayer) were dismissed. Awards attract interest at court rates subject to statutory deductions; the claimant was awarded costs and interest. Judgment delivered at Nyeri on 11th July 2025 by Onesmus N Makau, J, via Teams with the parties' consent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the grievants were constructively dismissed.
  2. 2.Whether the claimant is entitled to the reliefs sought.

Key legal issues

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01

Whether the grievants were constructively dismissed

Holding

Yes. The indefinite unpaid leave without consent and the stoppage of salaries amounted to constructive termination, which automatically amounts to unfair and unlawful termination under section 45 of the Employment Act.

Reasoning

Constructive dismissal is a common-law term, not statutory. The grievants were sent on leave from August 2023, the leave was repeatedly extended, and on 26th September 2023 they were told to remain home until further notice with salaries stopped. There was no consent to unpaid leave, and non-payment of salary is a serious breach entitling repudiation. The evidence was uncontroverted as the respondent never entered appearance.

p. 6
02

Whether the claimant is entitled to the reliefs sought

Holding

Partially. Reinstatement was refused as impracticable; one-month salary in lieu of notice, compensation of 10 or 12 months' gross salary depending on length of service, and certificates of service were awarded; underpayment of wages and leave claims were dismissed.

Reasoning

Reinstatement was impracticable given the separation since September 2023. Notice pay flows from section 35(1)(c) and compensation from section 49(1) of the Employment Act. Compensation was scaled at 10 months for those serving below 13 years and 12 months for longer service, factoring clean disciplinary records. The underpayment claim failed as positions did not align with the General Wage Orders and the delay since 2010 was unexplained; the leave claim failed for lack of particulars.

p. 7

Legal principles established

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  • Constructive dismissal arises where an employee resigns owing to the employer's intolerable conduct or serious breach of the employment contract, such as failure to pay salary
  • Placing employees on indefinite unpaid leave without their consent amounts to constructive termination, and constructive dismissal amounts to unfair and unlawful termination under section 45 of the Employment Act
  • Failure to pay salary is a serious breach entitling the employee to repudiate the contract

Court orders

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  1. 1.Judgment entered for the claimant against the respondent with each grievant awarded one-month salary in lieu of notice plus compensation for unfair termination as itemised, and a certificate of service
  2. 2.Nancy Nyambura Mukura (1st Grievant): Notice Kshs.14,407.80; Compensation Kshs.172,893.60; total Kshs.187,301.40; certificate of service
  3. 3.Grace Wanjeri Mwangi (2nd Grievant): Notice Kshs.16,940.00; Compensation Kshs.203,280.00; total Kshs.220,220.00; certificate of service
  4. 4.Priscilla Gathoni Muturi (3rd Grievant): Notice Kshs.14,407.80; Compensation Kshs.172,893.60; total Kshs.187,301.40; certificate of service
  5. 5.Esther Mugechi Mukunya (4th Grievant): Notice Kshs.14,342.85; Compensation Kshs.143,428.50; total Kshs.157,771.35; certificate of service
  6. 6.Catherine Njoki Macharia (5th Grievant): Notice Kshs.14,407.80; Compensation Kshs.172,893.60; total Kshs.187,301.40; certificate of service
  7. 7.Zipporah Mugure Githirwa (6th Grievant): Notice Kshs.12,527.65; Compensation Kshs.125,276.50; total Kshs.137,804.15; certificate of service
  8. 8.Mary Wanjira Mwangi (7th Grievant): Notice Kshs.14,398.07; Compensation Kshs.172,776.84; total Kshs.187,174.91; certificate of service
  9. 9.Caroline Njeri Wangai (8th Grievant): Notice Kshs.14,407.80; Compensation Kshs.172,893.60; total Kshs.187,301.40; certificate of service
  10. 10.Joyce Wangari Kinya (9th Grievant): Notice Kshs.14,407.80; Compensation Kshs.172,893.60; total Kshs.187,301.40; certificate of service
  11. 11.Awards subject to statutory deductions and to attract interest at court rates from the date of judgment
  12. 12.Claimant awarded costs and interest

The bench

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One judgment of the whole court — no separate or dissenting opinions.

OM
majority

Wrote the judgment

Jurisdiction invoked
Referral to the Employment and Labour Relations Court after failed conciliation under the Labour Relations framework (matter referred to this court after the claimant failed to agree with the conciliator's report)

Relief refused

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Reinstatement

Not practicable given the period of separation since September 2023; the alternative prayer was awarded instead

p. 6

Underpayment of wages

Positions served did not align with the General Wage Orders cited and the delay since 2010 was unexplained

p. 7

Accrued leave

Dismissed for lack of particulars and evidence; no grievant specifically prayed for accrued leave

p. 7

Sacco savings refund and service gratuity as particularised in the claim

Not among the reliefs the court awarded in the final judgment; only notice, compensation and certificate of service were granted

p. 7

Costs

The claimant is awarded costs and interest.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having considered the uncontroverted pleadings and evidence adduced by the claimant, I find that the indefinite unpaid leave amounted to constructive termination.
p. 6Constructive dismissal by indefinite unpaid leave
Besides the failure to pay salary to an employee is a serious breach which entitles the employee to repudiate his contract of employment.
p. 6Non-payment of salary as repudiatory breach
The prayer for compensation for unfair termination is also allowed under section 49(1) of the Employment Act since constructive dismissal automatically amounts to unfair and unlawful termination within the meaning of section 45 of the Employment Act.
p. 7Constructive dismissal equated to unfair termination
Consequently, I now enter judgment for the claimant against the respondent as follows:
p. 7Final orders - judgment and awards
The above awards are subject to statutory deductions but they will attract interest at court rates from the date hereof. The claimant is also awarded costs and interest.
p. 8Final orders - interest, deductions and costs

Issues in the judgment

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minor

Discrepancy in length of service: earlier paragraph states grievants served for periods ranging between 11-25 years, while the compensation paragraph refers to service between 11 years and 28 years

minor

Internal arithmetic discrepancy: the 4th grievant's claim totals Kshs.470,091.50, identical to the 7th and 8th grievants, despite the 4th grievant omitting a sacco savings refund line item

material

The respondent is never named in the judgment text and the case number is not stated

minor

The judgment states compensation figures in the conclusion that differ from the amounts claimed in the memorandum of claim for the same grievants

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, "Kenya Union of Commercial, Food and Allied Workers v Equitorial Nut Processors Limited (Cause E046 of 2024) [2025] KEELRC 2059 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2059/eng@2025-07-11

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