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ELRCPartially AllowedCause No E049 of 2024· [2025] KEELRC 2740 (KLR)

Maina v Mediheal Group of Hospitals (Cause E049 of 2024) [2025] KEELRC 2740 (KLR)

Employment and Labour Relations Court
3 October 2025
MOM. Onyango
2,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee who walks out of a job without resigning in writing cannot claim constructive dismissal in Kenya, even when the employer failed to pay salary.

What this practically means

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Executive summary

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This was an undefended employment claim in which the Claimant, a nurse formerly employed by the Respondent at a monthly salary of Kshs 80,685 under a contract dated 10th April 2019, sought declarations of unfair termination and constructive dismissal, 12 months' compensation, five months' salary arrears, notice pay, service pay, seven years' leave dues, a certificate of service, interest and costs. He testified that he was last paid in June 2023, worked unpaid until December 2023, and then left employment. The Respondent neither filed a response nor attended court, and the suit proceeded undefended. The court framed two issues: whether the Claimant was constructively dismissed, and whether he was entitled to the reliefs sought. Applying the Court of Appeal's tests in Coca Cola v Lugaga and following Mokaya and Henry Ochido, the court held that constructive dismissal requires the employee to terminate employment in response to the employer's fundamental breach, ideally by a resignation letter citing the breach. Because the Claimant simply walked out without resigning, he was himself in breach of the contract, and two wrongs do not make a right; constructive dismissal was not proved. In an undefended claim the claimant must still prove every prayer: the declaration, compensation, notice pay, salary arrears, service pay and leave dues all failed for want of proof, service pay being additionally barred by his NSSF contributions. The court granted only the certificate of service under Section 51(1) of the Employment Act and ordered each party to bear its own costs. Judgment delivered on 3rd October 2025 by M. Onyango, Judge.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

No; walking out without resigning does not constitute constructive dismissal

Reasoning

The court applied the contractual and unreasonable tests from Coca Cola v Lugaga. Non-payment of salary can amount to repudiatory breach, but constructive dismissal requires the employee to terminate the contract in response, evidenced by a resignation. The Claimant neither pleaded nor proved a resignation letter; he simply walked out, which was itself a breach of contract, leaving both parties in breach.

p. 5
02

Whether the Claimant is entitled to the monetary and declaratory reliefs sought

Holding

All monetary and declaratory reliefs declined; only the certificate of service awarded

Reasoning

In an undefended suit the claimant bears the burden of proving every prayer. Compensation, notice pay and the declaration failed with the constructive dismissal finding; salary arrears failed for want of proof of continued employment; service pay was barred by NSSF contributions; leave dues lacked evidence. Section 51(1) of the Employment Act independently entitled him to a certificate of service.

p. 6

Legal principles established

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  • For constructive dismissal, there must be a termination/resignation by the employee in response to a fundamental breach by the employer, ideally evidenced by a resignation letter citing the breach; a mere walk-out is itself a breach and does not ground compensation
  • Where both parties to an employment contract are in breach, neither can claim compensation from the other
  • In an undefended claim, the claimant must still prove every prayer sought
  • An employee is entitled to a certificate of service under Section 51(1) of the Employment Act regardless of the manner of exit

Court orders

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  1. 1.Dismissal of the prayers in respect of declaration of constructive dismissal, 12 months' compensation, salary in lieu of notice, service pay, leave dues and salary arrears
  2. 2.The Respondent shall issue a certificate of service to the Claimant pursuant to Section 51(1) of the Employment Act, 2007
  3. 3.Each party shall bear its own costs of the suit

Authorities

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Legislation

  • Employment ActSection 17(1) and Section 17(10)
  • Employment Act 2007Section 51(1)
  • Constitution of Kenya, 2010Article 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

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, "Maina v Mediheal Group of Hospitals (Cause E049 of 2024) [2025] KEELRC 2740 (KLR)", Case Analysis (2025). Cause No E049 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2740/eng@2025-10-03

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