Kamau v Gibb Africa Limited (Cause E859 of 2023) [2025] KEELRC 3038 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's resignation amounted to constructive dismissal
- 2.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the Claimant's resignation amounted to constructive dismissal
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.
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.
Whether the Claimant proved unpaid salary arrears of Kshs. 9,703,132.90
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.
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).
Whether the Claimant was entitled to 12 months' compensation and service pay
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.
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.
Legal principles established
#- 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
#- 1.A declaration that the Claimant was constructively dismissed from employment by the Respondent, and consequently his termination was unfair and unlawful
- 2.Award of net salary arrears of Kshs. 9,703,132.90
- 3.Award of compensatory damages of Kshs. 1,961,307.00, equivalent to three (3) months' gross salary
- 4.Interest on the amounts awarded at court rates from the date of judgment until payment in full
- 5.The Respondent to bear the costs of the suit
- 6.The Respondent to issue the Claimant with a Certificate of Service within fourteen (14) days from the date of judgment
- 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
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
The Respondent shall bear the costs of this suit.
Quotable passages
#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.
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.
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.
A declaration is hereby made that the Claimant was constructively dismissed from employment by the Respondent, and consequently, his termination was unfair and unlawful.
The Claimant is further awarded compensatory damages of Kshs. 1,961,307.00, equivalent to three (3) months of his gross salary.
The Respondent is directed to issue the Claimant with a Certificate of Service within fourteen (14) days from the date of this judgment.
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
Issues in the judgment
#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.
Paragraph 59 of the judgment is blank (contains only the number), suggesting a possible omission before the Orders section.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.