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ELRCAllowedNot stated in the judgment as provided (Memorandum of Claim dated 30th January 2024)

MM v Eurocity Hospital Kisumu & another (Cause E007 of 2024) [2025] KEELRC 81 (KLR)

Employment and Labour Relations Court
21 January 2025
2,600 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded an employee Kshs 2.4 million after unpaid wages and sexual harassment forced her resignation, holding the hospital and manager jointly liable.

What this practically means

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Executive summary

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The Claimant, MM, sued Eurocity Hospital and A.O before the Employment and Labour Relations Court at Kisumu, alleging constructive dismissal. She claimed that unpaid salary for two months and sexual harassment by the 2nd Respondent forced her resignation, and sought salary arrears, damages for unlawful dismissal, and pay in lieu of notice. The Respondents denied the claim, asserting she voluntarily resigned on 7 days' notice for personal reasons and that no terminal benefits were owed. The Claimant testified for herself and one witness testified for the Respondents; both parties filed submissions. The court applied the constructive dismissal principles from Coca Cola East & Central Africa Limited v Maria Kagai Ligaga. It found the elements of constructive dismissal present: non-payment of salary was a repudiatory breach, and the 2nd Respondent abused his position by conditioning payment of the Claimant's dues on sexual intercourse, as evidenced by a certified audio recording the court listened to. WhatsApp messages indicated sexual harassment allegations against the 2nd Respondent and the 1st Respondent failed to pay wages or remedy the wrong after a demand letter. The court held both Respondents jointly and severally liable. It awarded Kshs. 200,000/- as two months' unpaid wages, Kshs. 100,000/- notice pay, Kshs. 1,500,000/- damages for sexual harassment, and Kshs. 600,000/- being six months' compensation under section 49 of the Employment Act, with costs and interest on the wage and notice sums from filing and on the damages and compensation from judgment. Judgment was delivered at Kisumu on 21st January 2025 by Nzioki wa Makau, Judge.

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 was constructively dismissed
  2. 2.Whether the Claimant proved sexual harassment by the 2nd Respondent
  3. 3.Whether the Claimant is entitled to terminal dues, damages and compensation

Key legal issues

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01

Constructive dismissal

Holding

The elements of constructive dismissal were made out; the Respondents created circumstances forcing the Claimant to resign through non-payment of salary and sexual harassment.

Reasoning

Applying Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga, the court found a repudiatory breach: two months' unpaid salary went to the root of the contract. The 2nd Respondent's recorded conduct, conditioning payment of dues on sex, showed the employer no longer intended to be bound by essential terms. The 1st Respondent failed to protect the Claimant or remedy the wrong after a demand letter, and the resignation followed promptly, establishing causation and no acquiescence.

p. 3
02

Sexual harassment

Holding

The audio recording established sexual harassment; the 2nd Respondent abused his position to the Claimant's detriment, and both Respondents were jointly and severally liable.

Reasoning

The court listened to the audio recording, certified as electronic evidence, and found the conversation unaltered, with repeated requests for sex linked to payment of the Claimant's withheld wages. The 2nd Respondent knew of the unpaid dues and leveraged them. Her dues were never paid, presumably because she did not accede. The 1st Respondent's failure to pay wages and respond to the demand letter made both Respondents jointly and severally liable.

p. 6
03

Reliefs and compensation

Holding

The Claimant was awarded unpaid wages, notice pay, damages for sexual harassment, and six months' compensation under section 49 of the Employment Act, with costs and interest.

Reasoning

The Respondents acknowledged the two months' unpaid salary, justifying the award of Kshs. 200,000/-. The unconscionable sexual harassment warranted general damages of Kshs. 1,500,000/-. Wrongful termination attracted six months' gross salary as compensation under section 49. Notice pay of one month was awarded, with interest differentiated between pre- and post-judgment sums, and costs followed the event.

p. 6

Legal principles established

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  • The elements of constructive dismissal include a repudiatory breach of fundamental terms of the contract, an objective test of the employer's conduct, causation, no acquiescence by the employee, and the burden on the employee.
  • Where an employer withholds wages and a senior person conditions payment of dues on sexual intercourse, the resulting resignation amounts to constructive dismissal.
  • Victims of sexual harassment should document incidents and preserve electronic evidence.

Court orders

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  1. 1.Kshs. 200,000/- being 2 months' unpaid wages
  2. 2.Kshs. 100,000/- as notice pay
  3. 3.Kshs. 1,500,000/- damages for the sexual harassment
  4. 4.6 months' compensation in terms of section 49 of the Employment Act for the wrongful termination – Kshs. 600,000/-
  5. 5.Costs of the suit
  6. 6.Interest on the wage and notice pay sums at court rates from the date of filing suit till payment in full
  7. 7.Interest on the sexual harassment damages and compensation sums at court rates from the date of judgment till payment in full

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 over employment disputes (Employment Act)

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.

The elements of constructive dismissal are present in this case. The Respondents clearly created the circumstances forcing the Claimant to resign.
p. 3constructive dismissal found
In this case there IS evidence indicative of sexual harassment of a kind that is deeply disturbing.
p. 6sexual harassment evidence
The Court finds the Respondents jointly and severally liable for the damages caused to the Claimant.
p. 6joint and several liability
It is so ordered.
p. 6final orders / disposition

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, "MM v Eurocity Hospital Kisumu & another (Cause E007 of 2024) [2025] KEELRC 81 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (Memorandum of Claim dated 30th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/81/eng@2025-01-21

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