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ELRCPartially AllowedCause No E050 of 2024· [2025] KEELRC 2735 (KLR)

Kibet v Mediheal Group of Hospitals (Cause E050 of 2024) [2025] KEELRC 2735 (KLR)

Employment and Labour Relations Court
3 October 2025
2,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, a nurse employed by the Respondent from 10th January 2017 at a monthly salary of Kshs 102,310, alleged that her salary was withheld from mid-2023 and that she was unfairly terminated in December 2023, and claimed constructive dismissal with reliefs including 12 months' compensation, salary arrears, maternity leave pay, notice pay, service pay, leave dues and a certificate of service. The suit proceeded undefended after the Respondent failed to attend court. The court framed two issues: whether the Claimant was constructively dismissed, and whether she was entitled to the reliefs sought. Applying the Court of Appeal's contractual and unreasonable tests in Coca Cola v Lugaga, the court accepted that withholding salary is a repudiatory breach of the employment contract, but held that constructive dismissal requires the employee to actually terminate the employment in response to the breach, ordinarily by a resignation letter citing it. Because the Claimant merely walked out without resigning, both parties were in breach of the contract and constructive dismissal was not proved. Most reliefs were consequently refused: no compensation, notice pay, maternity leave pay, service pay (she was an NSSF contributor), or leave dues. The court awarded only two months' salary arrears of Kshs 204,620, ordered the Respondent to issue a certificate of service under section 51(1) of the Employment Act, awarded costs to the Claimant, and interest at court rates from the date of judgment.

Key legal issues

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01

Whether withholding salary amounts to constructive dismissal where the employee simply walks out without resigning

Holding

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.

Reasoning

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.

p. 5
02

Entitlement to terminal dues where constructive dismissal fails

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Judgment entered in favour of the Claimant against the Respondent for 2 months' salary arrears in the sum of Kshs. 204,620
  2. 2.The Respondent shall issue a certificate of service to the Claimant
  3. 3.The Respondent shall bear the Claimant's costs of this suit
  4. 4.Interest shall accrue at court rates from date of judgment

Authorities

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Legislation

  • Employment ActSection 17(1) and 17(10)
  • Employment Act 2007Section 51(1)
  • Employment ActSection 40
  • Constitution of KenyaArticle 41

Cases cited (6)

  • Coca Cola East & Central Africa Limited v Maria Kagai Lugaga
    [2015] eKLR
  • Mokaya v Christ the King Parish & another
    (Cause 386 of 2015) [2024] KEELRC 28 (KLR) (25 January 2024)
  • Nyabuti v East African Safari Express Ltd
    ELRC Cause E682 of 2022 [2024] KEELRC 2064 (KLR)
  • Henry Ochido v NGO Co-ordination Board
    [2015] eKLR
  • Nathan Ogada Atiagaga versus Davis Engineering
    Cause No.419 of 2014
  • Emmanuel Mutisya Solomon versus Agility Logistics
    Cause No. 1448 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and Article 41 of the Constitution (fair labour practices)

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, "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.