Warui v Urithi Housing Co-operative Society Ltd (Employment and Labour Relations Cause E414 of 2021) [2024] KEELRC 1860 (KLR)
The bottom line
#A Kenyan court ruled that withholding an employee's salary is constructive dismissal, awarding a former Legal Manager Kshs 625,238 plus costs.
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 employment was constructively dismissed
Key legal issues
#Whether the Claimant's employment was constructively dismissed
Yes - the Respondent withheld the Claimant's salary despite email correspondences, and failed to defend or controvert the evidence, so the Claimant was constructively dismissed and entitled to reliefs for unfair termination.
The court applied the Coca Cola v Ligaga principles for constructive dismissal, including identification of fundamental terms, repudiatory breach, causation and the burden on the employee. It found email correspondences proved the Respondent withheld the salary. The Respondent did not appear to controvert the claim. Relying on Edgar Kiplangat Mutai v James Kipkech Toroitich Kisa, non-payment of salary is a fundamental breach going to the root of the contract, justifying resignation and amounting to constructive dismissal, which is unfair dismissal under Section 45 of the Employment Act.
Legal principles established
#- Withholding an employee's salary without excuse is a fundamental breach justifying resignation and amounts to constructive dismissal, which constitutes unfair dismissal within the meaning of Section 45 of the Employment Act
- The burden of proving unfair termination or wrongful dismissal rests on the employee
Court orders
#- 1.Unpaid salary for May, June and part of July 2019 awarded at Kshs 287,238/-
- 2.One month salary in lieu of notice awarded at Kshs 169,000/-
- 3.Compensation for unlawful termination due to constructive dismissal equivalent to one month's salary at Kshs 169,000/-
- 4.Claim for unremitted NSSF dues declined for lack of proof
- 5.Total award of Kshs 625,238/- plus interest at court rates from the date of judgment until full payment
- 6.Costs 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 over employment disputes (Employment Act, Section 47(5)); reference to Article 48 of the Constitution on access to justice
Relief refused
#Unremitted NSSF dues
No proof of the claim was produced
Costs
Costs are awarded to the claimant
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.
The court therefore, holds the Claimant’s employment was constructively dismissed and she is entitled to the reliefs sought herein for damages for unfair termination due to constructive dismissal.
Withholding of an employee’s salary without any excuse is a fundamental breach of integral part of employment contract and therefore on that ground alone the Claimant was justified to resign and sue.
Total award is Kshs 625,238/- plus interest at court rates from date of judgment until full payment
Costs are awarded to the claimant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warui v Urithi Housing Co-operative Society Ltd (Employment and Labour Relations Cause E414 of 2021) [2024] KEELRC 1860 (KLR)", Case Analysis (2024). Not stated in the judgment (Memorandum of Claim dated 19th May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1860/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.