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Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment (tried as test suit, clustered with ELRC Cause Nos. E850, E854, E856, E903, E852, E869, E867, E855 and E868 of 2023)

Kamau v Gibb Africa Limited (Cause E859 of 2023) [2025] KEELRC 3038 (KLR)

Employment and Labour Relations Court
31 October 2025
2,948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that failing to pay an employee's salary is grounds for constructive dismissal, awarding the engineer Kshs. 11.6 million.

What this practically means

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Executive summary

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This Employment and Labour Relations Court judgment at Nairobi, delivered by Stella Rutto, J on 31 October 2025, resolved a test suit tried under Rule 62 of the ELRC (Procedure) Rules, 2024, clustered with nine other causes against Gibb Africa Ltd. The Claimant, employed from 1 December 2004 and last serving as Operations Manager, Structures (Buildings), resigned effective 30 September 2021, alleging that persistent non-payment of his salary amounted to constructive dismissal. He sought declarations, unpaid salary arrears of Kshs. 9,703,132.90, twelve months' compensation, service pay, a Certificate of Service, costs and interest. The Respondent contended he voluntarily resigned and denied owing salary, attributing delays to Covid-19-driven cash flow problems. The Court found that failure to pay wages when due was a fundamental breach going to the root of the employment contract under the principles in Coca-Cola v Ligaga, and that the Respondent's financial hardship was no excuse given lawful alternatives such as redundancy. Constructive dismissal and unfair, unlawful termination were accordingly found. On proof, the Respondent's failure to produce records required under Section 74 of the Employment Act, and RW1's concessions, meant the Claimant proved the salary arrears on a balance of probabilities. The Court awarded the net salary arrears of Kshs. 9,703,132.90, but limited compensation to three months' gross salary (Kshs. 1,961,307.00) considering the pandemic, and refused service pay under the Section 35(6) exclusions. It ordered interest, costs against the Respondent, issuance of a Certificate of Service within fourteen days, and extended its liability finding to all clustered matters.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant's resignation amounted to constructive dismissal
  2. 2.Whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Whether the Claimant's resignation amounted to constructive dismissal

Holding

Yes. The Respondent's persistent failure to pay salary when due was a fundamental breach going to the root of the contract, demonstrating an intention not to be bound by an essential term, entitling the Claimant to resign with or without notice.

Reasoning

Applying the Coca-Cola v Ligaga principles, the Court found the admitted non-payment of wages was a fundamental breach of an essential term. The Respondent's financial difficulties were held unjustifiable given the availability of lawful alternatives such as redundancy. The obligation to pay wages under Section 17(1) of the Employment Act is fundamental, and retaining an employee without pay constituted an unfair labour practice amounting to constructive dismissal and unfair, unlawful termination.

p. 5
02

Whether the Claimant proved unpaid salary arrears of Kshs. 9,703,132.90

Holding

Yes, on a balance of probabilities. The Respondent, despite denying any liability, adduced no records to rebut the claim, contrary to its statutory duty under Section 74 of the Employment Act.

Reasoning

The Respondent admitted delays in payment but denied owing arrears without supporting evidence. Section 74 obliges employers to keep employment records; the failure to produce them, coupled with RW1's concession that she did not know whether arrears were owed or later paid, left the Court with no reason to doubt the Claimant's computation based on net salary (PAYE having been remitted).

p. 6
03

Whether the Claimant was entitled to 12 months' compensation and service pay

Holding

Compensation limited to three months' gross salary considering the Covid-19 pandemic; service pay refused because the Claimant was a member of NSSF and the Respondent's Retirement Benefits Scheme, within the Section 35(6) exclusions.

Reasoning

Under Section 49(1) of the Employment Act the Court has discretion on compensation. Judicial notice of the pandemic's adverse effect on the Respondent justified a modest award of three months. On service pay, the payslips showed statutory pension contributions, bringing the Claimant within the statutory exclusions, consistent with the Respondent's reliance on the Omanga case.

p. 5

Legal principles established

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  • Failure to pay an employee's salary as and when it falls due is a fundamental breach going to the root of the employment contract, entitling the employee to treat himself as constructively dismissed and resign with or without notice.
  • The obligation to remunerate an employee for work performed is a fundamental rule in employment relations, encapsulated in Section 17(1) of the Employment Act.
  • Financial hardship does not excuse an employer from paying salaries; the employer must invoke lawful mechanisms such as redundancy rather than retaining an employee without pay.
  • Where an employer fails to keep proper employment records as required by Section 74 of the Employment Act and produces no evidence to rebut a wage claim, the Court may accept the employee's uncontroverted assertion of unpaid salary.

Court orders

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  1. 1.A declaration that the Claimant was constructively dismissed from employment by the Respondent, and consequently his termination was unfair and unlawful
  2. 2.Award of net salary arrears of Kshs. 9,703,132.90
  3. 3.Award of compensatory damages of Kshs. 1,961,307.00, equivalent to three (3) months' gross salary
  4. 4.Interest on the amounts awarded at court rates from the date of judgment until payment in full
  5. 5.The Respondent to bear the costs of the suit
  6. 6.The Respondent to issue the Claimant with a Certificate of Service within fourteen (14) days from the date of judgment
  7. 7.The Court's finding on liability to apply equally to all other matters in the same cluster (nine other causes against Gibb Africa Ltd)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court (Procedure) Rules, 2024 (Rule 62 test-suit procedure); Article 41 of the Constitution invoked in the reliefs
Consolidated with
ELRC Cause No. E850 of 2023 – Solomon Ngatia Nderitu v Gibb Africa Ltd, ELRC Cause No. E854 of 2023 – Tom Simiyu Munialo v Gibb Africa Ltd, ELRC Cause No. E856 of 2023 – Charles Nzuki Mutunga v Gibb Africa Ltd, ELRC Cause No. E903 of 2023 – Mark Wanganga v Gibb Africa Ltd, ELRC Cause No. E852 of 2023 – Solomon Gichuru v Gibb Africa Ltd, ELRC Cause No. E869 of 2023 – Samson Mwangi v Gibb Africa Ltd, ELRC Cause No. E867 of 2023 – Desalegn Abanet v Gibb Africa Ltd, ELRC Cause No. E855 of 2023 – Thomas Olouch v Gibb Africa Ltd, ELRC Cause No. E868 of 2023 – Peter Ndungu v Gibb Africa Ltd

Relief refused

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Declaration of violation of Article 41 of the Constitution (fair labour practices)

The Court instead granted a declaration of constructive dismissal and unfair termination without making a distinct constitutional declaration

12 months' salary as compensation (Kshs. 7,845,228)

Court awarded only 3 months' gross salary as compensatory damages, taking judicial notice of the Covid-19 pandemic's effect on the Respondent

p. 5

Service pay of Kshs. 6,411,975

Claimant contributed to NSSF and was a member of the Respondent's Retirement Benefits Scheme, falling within the exclusions under Section 35(6) of the Employment Act

p. 6

Costs

The Respondent shall bear the costs of this suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the Claimant was justified in treating himself as constructively dismissed and was therefore entitled to resign, with or without notice.
p. 5constructive dismissal - entitlement to resign without notice
It is this Court's view that, despite the financial dificulties cited by the Respondent, the prolonged failure to pay the Claimant's salary timely was unjustifiable and amounted to an unfair labour practice.
p. 5financial hardship no excuse for non-payment of wages
Given that Section 74 of the Employment Act places a statutory obligation on employers to keep and maintain proper employment records, it was reasonably expected that the Respondent would produce such records to demonstrate that the Claimant's salary had been fully paid as and when due.
p. 6employer's statutory duty to keep employment records
A declaration is hereby made that the Claimant was constructively dismissed from employment by the Respondent, and consequently, his termination was unfair and unlawful.
p. 6final orders - declaration of constructive dismissal
The Claimant is further awarded compensatory damages of Kshs. 1,961,307.00, equivalent to three (3) months of his gross salary.
p. 6final orders - compensatory damages
The Respondent is directed to issue the Claimant with a Certificate of Service within fourteen (14) days from the date of this judgment.
p. 6final orders - certificate of service
Since this matter was being tried as a test suit, the Court's finding on liability herein shall equally apply to all the other matters within the same cluster
p. 6test suit - liability finding binding on clustered causes

Issues in the judgment

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minor

The name of the Claimant and the case number of the instant suit are not stated anywhere in the judgment; the Respondent's name (Gibb Africa Ltd) appears only in the list of clustered test-suit matters.

minor

Paragraph 59 of the judgment is blank (contains only the number), suggesting a possible omission before the Orders section.

minor

Relief (d) sought a Certificate of Service 'that is not prejudicial to the Claimant', but the order directs issuance without addressing the 'not prejudicial' qualifier.

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, "Kamau v Gibb Africa Limited (Cause E859 of 2023) [2025] KEELRC 3038 (KLR)", Case Analysis (2025). Not stated in judgment (tried as test suit, clustered with ELRC Cause Nos. E850, E854, E856, E903, E852, E869, E867, E855 and E868 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3038/eng@2025-10-31

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