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ELRCPartially AllowedNot stated in judgment (Statement of Claim dated 8th July 2024)· [2025] KEELRC 2741 (KLR)

Biwott v Mediheal Group of Hospitals (Cause E048 of 2024) [2025] KEELRC 2741 (KLR)

Employment and Labour Relations Court
3 October 2025
MOM. Onyango
2,418 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 stops showing up instead of formally resigning loses a constructive dismissal claim in Kenya, even if the employer withheld pay.

What this practically means

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Executive summary

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In an undefended claim, the Claimant, formerly employed as a Hospital Administrator at a monthly salary of Kshs 105,677, sued the Respondent alleging constructive dismissal after his salary went unpaid from mid-2023 until he walked out of employment in December 2023. He sought declarations of unfair termination and constructive dismissal, 12 months' compensation, five months' salary arrears, one month's pay in lieu of notice, service pay, leave dues and a certificate of service. The Respondent neither filed a response nor attended court. 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 contractual and unreasonable tests in Coca Cola v Lugaga and related authorities, the court held that although non-payment of salary is a repudiatory breach striking at the core of the employment relationship, constructive dismissal requires the employee to resign citing the employer's breach. The Claimant never sent a resignation letter; he simply walked out, which was itself a breach of contract. Both parties being in breach, the constructive dismissal claim failed. The court also found, from a pay slip on record, that the Claimant was last paid in August 2023, not June. It awarded four months' salary arrears (September to December 2023) of Kshs 422,708 with interest at court rates from the date of judgment, ordered issuance of a certificate of service under Section 51(1) of the Employment Act, and awarded the Claimant costs. Compensation, notice pay, service pay and leave dues were declined, the latter two because the Claimant was an NSSF contributor and adduced no evidence on leave.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

Constructive dismissal not proved; the Claimant walked out without resigning, so his own conduct breached the contract.

Reasoning

The court adopted the contractual and unreasonable tests from Coca Cola v Lugaga. While non-payment of salary is a repudiatory breach, constructive dismissal requires the employee to terminate the contract by resigning in response to the breach. The Claimant never sent a resignation letter; he simply walked out. His walking out was itself a breach, and both parties being in breach, no compensation lies. Breach of contract alone does not terminate an employment contract.

p. 5
02

Salary arrears

Holding

Awarded 4 months' salary arrears (September to December 2023) of Kshs 422,708, as a pay slip showed August 2023 salary was paid.

Reasoning

The Claimant alleged five months' arrears but his own documents included a pay slip for August 2023, so the court found his last salary was paid in August, not June 2023. He was therefore entitled only to September, October, November and December 2023 salaries, quantified at Kshs 422,708.

p. 5
03

Certificate of service

Holding

Granted under Section 51(1) of the Employment Act.

Reasoning

The court found the Claimant entitled to a certificate of service as of right under Section 51(1) of the Employment Act 2007, irrespective of the failure of the constructive dismissal claim.

p. 6

Legal principles established

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  • To establish constructive dismissal there must be a resignation (termination) by the employee grounded on the employer's breach of a fundamental term of the contract, evidenced by a resignation letter citing that breach.
  • A party in breach of a contract cannot claim compensation from the other party who is also in breach.
  • An employee who is a contributing NSSF member is not entitled to service pay.

Court orders

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  1. 1.Judgment entered in favor of the Claimant against the Respondent for 4 months' salary arrears in the sum of Kshs 422,708
  2. 2.The Respondent shall issue 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)
  • Employment ActSection 17(10)
  • Employment ActSection 40
  • Employment Act 2007Section 51(1)
  • 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 jurisdiction (Article 162(2) context; claim under the Employment Act, 2007)

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, "Biwott v Mediheal Group of Hospitals (Cause E048 of 2024) [2025] KEELRC 2741 (KLR)", Case Analysis (2025). Not stated in judgment (Statement of Claim dated 8th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2741/eng@2025-10-03

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