Mutimba v Nandenu & 2 others (Cause E003 of 2026) [2026] KEMC 684 (KLR)
The bottom line
#A Kenyan employer's failure to pay a Clinical Officer for three months was ruled constructive dismissal, costing the employer Kshs. 469,290 plus costs and interest.
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 voluntarily left the Respondent's employment
- 2.Whether the Claimant was summarily dismissed by the Respondent
- 3.What are the reliefs available to the Claimant
Key legal issues
#Whether the Claimant voluntarily left employment (desertion) or was orally dismissed
Evidence was barely adequate for a finding either way; both parties failed to discharge the burden of proof on this issue
The claimant relied only on his witness statement without corroborating evidence such as attendance registers or fellow employees' statements, and failed to serve a Notice to Produce for employer-held records. The respondent, on the other hand, produced only its CEO's witness statement to prove desertion. Section 107 of the Evidence Act and section 47(5) of the Employment Act allocate burdens; neither side discharged theirs, so the court could not find desertion or oral summary dismissal.
Whether unpaid salary arrears of three months constitute constructive dismissal
Yes - failure to pay salary for three months is heinous and intolerable conduct amounting to constructive dismissal and unfair, unlawful termination under section 45 of the Employment Act
Adopting the definition of constructive dismissal in Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga and the reasoning in Abonyo v Finacess Limited, the court held that continuous non-payment of salary demonstrates unwillingness to be bound by the contract, is a fundamental breach going to the foundation of the contract, and the employee's departure is treated as an actual dismissal.
Housing allowance claim
Rejected - consolidated gross salary is presumed inclusive of housing allowance absent pay slips proving otherwise
Section 31(2) of the Employment Act exempts employers where the contract consolidates housing in the salary. The claimant's contract showed a consolidated gross salary of Kshs. 30,257/=. Following Charity Wambui Muriuki v Total Security Surveillance Limited, absent pay slips the claim fails.
Statutory compensation for unlawful termination
Twelve months' gross salary awarded, being Kshs. 363,084/=
Guided by the Supreme Court's decision in Kenfreight (EA) Limited v Nguti on the judicious exercise of discretion under section 49, and considering the claimant's permanent employment and section 49(4) factors, the court exercised its discretion in favour of the maximum twelve-month award.
Legal principles established
#- An employer's continuous failure to pay salary as agreed amounts to constructive dismissal, deemed unfair and unlawful termination under section 45 of the Employment Act
- A claimant who alleges he was turned away from work must corroborate his word, and where documents are in the employer's possession he must serve a Notice to Produce; failure to do so defeats an adverse inference
- Reinstatement is discretionary, not an automatic right, and is declined where compensation has been awarded and the relationship is acrimonious
Court orders
#- 1.Judgment entered against the Respondent for salary arrears of Kshs. 75,949/=
- 2.Notice pay of Kshs. 30,257/= awarded
- 3.Statutory compensation for unlawful termination of twelve months' gross salary, Kshs. 363,084/= (total award Kshs. 469,290/=)
- 4.Respondent ordered to issue the Claimant with a Certificate of Service in accordance with section 51 of the Employment Act
- 5.Awarded sums subject to PAYE and other applicable statutory deductions pursuant to section 49(2) of the Employment Act
- 6.Awarded sums to earn interest at court rate from the date of judgment till payment in full
- 7.Costs of the cause awarded to the Claimant
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
Relief refused
#Housing allowance arrears of Kshs. 45,000/=
Claimant's consolidated gross salary was presumably inclusive of housing allowance and he did not produce pay slips to prove otherwise
Unremitted NSSF contributions of Kshs. 19,440/=
No NSSF account statement produced; claim dismissed for want of proof
Reinstatement
Claimant already compensated; acrimonious termination and Respondent's cessation of operations militate against reinstatement
Costs
The Claimant will have the costs of this cause.
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.
An employer’s conduct of failing to pay an employee’s salary for three months in full as agreed under the contract of employment is without doubt heinous and intolerable conduct on the part of the employer, which makes it hard for an employee to continue working for the employer.
More importantly, where an employee believes that the employer has in its possession some documents that would support the case of the employee, that employee is obligated to serve a production notice.
The upshot of the above is that judgment is entered against the Respondent as follows:a) Salary arrears of Kshs. 75,949/= b) Notice Pay – Kshs. 30,257/= c) Statutory Compensation for Unlawful Termination - Kshs. 363,084/= Total Award – Kshs. 469,290/=
The Respondent is ordered to issue the Claimant with a Certificate of Service in accordance with section 51 of the Employment Act.
The awarded sums above will earn interest at court rate from the date of this judgment till payment in full.
The Claimant will have the costs of this cause.
Issues in the judgment
#The judgment cites section 45 of the Employment Act as the provision creating the duty to issue a Certificate of Service, whereas the duty is in section 51, which the judgment itself invokes in the final orders - the two provisions are conflated
Paragraph numbering in the judgment is duplicated (two paragraphs numbered 41) and paragraphs 6-9 appear irregularly formatted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutimba v Nandenu & 2 others (Cause E003 of 2026) [2026] KEMC 684 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/684/eng@2026-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.