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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 2734 (KLR)

Metto v Mediheal Group of Hospitals (Cause E052 of 2024) [2025] KEELRC 2734 (KLR)

Employment and Labour Relations Court
3 October 2025
MOM. ONYANGO
2,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court rejected a nurse's constructive dismissal claim because she resigned without citing her employer's breach, awarding only a certificate of service.

What this practically means

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Executive summary

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The Claimant, employed as a staff nurse from March 2018 at a monthly salary of Kshs 110,104, sued the Respondent alleging that her salary was withheld from July 2023 until she left employment in December 2023, amounting to constructive dismissal. She sought declarations of unfair and constructive dismissal, twelve months' compensation, five months' salary arrears, three months' maternity leave salary, notice pay, service pay, seven years' leave dues and a certificate of service. The Respondent was served but filed no defence and did not attend; the suit proceeded undefended on 16th December 2024. The court framed two issues: whether the Claimant was constructively dismissed, and her entitlement to reliefs. Relying on Black's Law Dictionary and the Court of Appeal's contractual and unreasonable tests in Coca Cola East & Central Africa Limited v Maria Kagai Lugaga, together with Mokaya v Christ the King Parish, Nyabuti v East African Safari Express Ltd and Henry Ochido v NGO Co-ordination Board, the court held that constructive dismissal requires the employee to terminate employment on grounds of the employer's fundamental breach, ordinarily evidenced by a resignation letter. The Claimant neither pleaded nor proved a resignation; her walking out was itself a breach, and where both parties are in breach neither may claim compensation. All monetary reliefs failed for want of proof: the single pay slip showed employment only up to November 2022, she was an NSSF contributor (disentitling her to service pay), and no evidence supported the maternity or leave claims. The claim was allowed only to the extent that the Respondent must issue a certificate of service under Section 51(1) of the Employment Act. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether withholding of salary for five months constituted constructive dismissal

Holding

No, constructive dismissal was not proved because the Claimant did not resign citing the employer's breach; she simply walked out, which was itself a breach.

Reasoning

The court adopted the contractual and unreasonable tests in Coca Cola v Lugaga and the requirement in Henry Ochido that constructive dismissal entails termination by the employee on grounds of a fundamental breach. While non-payment of salary is a repudiatory breach under Section 17 of the Employment Act and Article 41, the Claimant neither pleaded nor proved a resignation or termination of employment attributable to the breach, defeating the claim.

p. 5
02

Entitlement to terminal dues, service pay, leave and maternity benefits

Holding

All monetary reliefs failed for want of proof; only a certificate of service was awarded.

Reasoning

The suit proceeded undefended but the claimant still bore the burden of proof. The only pay slip produced was for November 2022, undermining the claim for five months' arrears; NSSF contributions disentitled her to service pay; and there was no evidence on maternity leave or unpaid leave. Section 51(1) of the Employment Act entitled her to a certificate of service regardless.

p. 6

Legal principles established

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  • Non-payment of salary can amount to a repudiatory breach justifying constructive dismissal, but the employee must establish a termination of employment on grounds of that breach, ordinarily evidenced by a resignation letter citing the breach.
  • An employee who abandons employment without resigning is herself in breach and cannot claim compensation where both parties are in breach.
  • A contributing NSSF member is not entitled to service pay; an employee is entitled to a certificate of service under Section 51(1) of the Employment Act.

Court orders

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  1. 1.The claim fails except for the prayer for issuance of a Certificate of Service
  2. 2.The Respondent to issue a Certificate of Service to the Claimant pursuant to Section 51(1) of the Employment Act
  3. 3.Each party shall bear its costs of this suit
Jurisdiction invoked
Article 41 of the Constitution and the Employment Act, 2007 (first-instance ELRC employment claim)

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, "Metto v Mediheal Group of Hospitals (Cause E052 of 2024) [2025] KEELRC 2734 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2734/eng@2025-10-03

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