Kibet v Mediheal Group of Hospitals (Cause E050 of 2024) [2025] KEELRC 2735 (KLR)
The bottom line
#Walking out of a job without resigning, even over unpaid salary, forfeits constructive dismissal claims in Kenya—only proven salary arrears were awarded.
What this practically means
#Executive summary
#Key legal issues
#Whether withholding salary amounts to constructive dismissal where the employee simply walks out without resigning
Not proved. Withholding salary is a repudiatory breach, but constructive dismissal requires the employee to terminate the employment in response, ordinarily by a resignation letter citing the breach.
The court accepted that non-payment of salary strikes at the core of the employment relationship and can constitute repudiatory breach under the Coca Cola test. However, the Claimant never sent a resignation letter or proved that she terminated her employment because of the breach. She walked out. Having not established a termination by the employee in response to the breach, constructive dismissal fails. Both parties were in breach of the contract.
Entitlement to terminal dues where constructive dismissal fails
Only proven salary arrears for November and December 2024 (Kshs. 204,620) and a certificate of service were awarded; compensation, notice pay, service pay, maternity and leave claims were refused for want of proof or NSSF membership.
The court addressed each prayer separately. Claims premised on unfair or constructive dismissal fell away with that finding. The maternity and leave claims failed for absence of evidence. Service pay was barred by NSSF contributions. Only the salary arrears evidence supported an award, limited to the two months the Claimant proved were unpaid.
Legal principles established
#- For constructive dismissal there must be a termination/resignation by the employee in response to the employer's breach of a fundamental term of the contract, ordinarily evidenced by a resignation letter citing the breach
- A walk-out without resignation does not amount to constructive dismissal; both parties are then in breach and neither can claim compensation from the other
- An employee who is a contributing member of NSSF is not entitled to service pay; an employee is in any event entitled to a certificate of service under section 51(1) of the Employment Act
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent for 2 months' salary arrears in the sum of Kshs. 204,620
- 2.The Respondent shall issue a certificate of service to the Claimant
- 3.The Respondent shall bear the Claimant's costs of this suit
- 4.Interest shall accrue at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and Article 41 of the Constitution (fair labour practices)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibet v Mediheal Group of Hospitals (Cause E050 of 2024) [2025] KEELRC 2735 (KLR)", Case Analysis (2025). Cause No E050 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2735/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.