Gichobi v Registered Trustees of Midhill Hospital (Cause E379 of 2021) [2025] KEELRC 2655 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's employment was terminated by the respondent
No termination was proved; the claimant assumed termination after failing to resume work following maternity leave, which assumption was unfounded.
The burden under section 47(5) of the Employment Act rested on the claimant to prove a termination. The court found the relationship was cordial when she last worked on 16th July 2020, she proceeded on approved sick leave and then maternity leave, and never resumed after maternity expiry. Her reliance on the engagement of another doctor and unpaid salary arrears was rejected; the demand letter concerned only salary arrears, confirming no termination was asserted or effected.
Whether the termination, if any, was lawful and fair
The issue did not arise since no termination was proved.
Having found no proof of termination, the court held the question of fairness under the Employment Act did not arise. No notice to show cause or disciplinary process was ever contemplated because the employer considered the claimant still an employee and paid her salary up to December 2020.
Whether the claimant was entitled to the reliefs sought, including salary arrears
Only salary arrears of Kshs. 800,000 were awarded, with interest at court rates from the date of filing suit; all other reliefs failed.
The court found the respondent's tabulation showed Kshs. 645,223/- outstanding to end August, with no evidence of payment for September (when the claimant was on maternity leave), totalling Kshs. 805,000. The claim for Kshs. 800,000 was thus proved on a balance of probabilities. The respondent's purported sick-leave deductions of Kshs. 320,000 were unsupported by its own leave records and rejected as an afterthought. Interest from filing suit compensated the unfair labour practice of non-payment.
Legal principles established
#- In a complaint of unfair termination, the employee bears the burden of proving that a termination occurred, while the employer bears the burden of justifying the grounds for termination.
- Failure to pay salary due for work done constitutes an unfair labour practice, compensable by interest and costs.
- An employee who does not resume work after the expiry of maternity leave, and does not resign, is in breach of the employment contract and cannot claim constructive or unfair termination from mere assumption.
Court orders
#- 1.Judgment entered for the claimant against the respondent for salary arrears of Kshs. 800,000 with interest at the court rate from the date of filing the suit until payment in full
- 2.The Respondent to pay the claimant costs
- 3.Stay of execution of 30 days granted
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichobi v Registered Trustees of Midhill Hospital (Cause E379 of 2021) [2025] KEELRC 2655 (KLR)", Case Analysis (2025). Cause No E379 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2655/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.