Owiti v Highlight Travel Limited t/a BCD Travel (Cause E699 of 2016) [2025] KEELRC 1111 (KLR)
The bottom line
#A Kenyan court ruled an employer constructively dismissed its accountant during Covid-19 and must pay nearly Kshs 1.9 million because unpaid leave was never agreed in writing.
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 parties had entered a full and final settlement (preliminary objection) barring the claim
- 2.Whether the Claimant was constructively dismissed
- 3.Whether the Claimant is entitled to unpaid annual leave for 2019 and 2020
- 4.Whether the Claimant is entitled to salary withheld during the Covid-19 unpaid leave period
- 5.Whether the Claimant was discriminated against at the workplace
- 6.Whether the Claimant is entitled to a certificate of service
Key legal issues
#Preliminary objection - full and final settlement
The preliminary objection fails; the Claimant never consented to the Kshs 1,850,000 payment as full and final settlement
The Respondent argued the parties had agreed on Kshs 1,850,000 as full and final settlement. The Claimant exhibited emails and WhatsApp exchanges with his former advocates showing he rejected the offer as paltry and instructed counsel to fight on. The court therefore found no consent, but factored the payment already made into the final award.
Constructive dismissal
The Claimant was constructively dismissed; his resignation was not voluntary but actuated by the Respondent's conduct
Applying Western Excavating v Sharp, the court found repeated transfers to departments for which he lacked qualifications, stripping of duties, demeaning treatment, denial of leave for his sick child, and an indefinite unpaid leave amounted to a significant breach of the contract going to its root. His conclusion that he considered himself dismissed was proper.
Unpaid annual leave 2019 and 2020
Awarded at Kshs 298,226
The Respondent's own witness admitted the leave days were not paid and the Claimant did not proceed on leave due to the Covid-19 pandemic. Under section 28(1) of the Employment Act the employee is entitled to leave with full pay after every twelve consecutive months of service, so the approved but untaken leave must be paid.
Withheld salary April 2020 to June 2021
Awarded at Kshs 2,236,695 for 15 months
The Respondent admitted non-payment of salary during the Covid period but claimed employees consented to unpaid leave. It produced no evidence of such agreement or of written notification as required by section 10(5) of the Employment Act, which obliges the employer to consult and notify the employee in writing of any change to contractual terms. The Claimant was therefore entitled to the withheld salary.
Discrimination
Claim dismissed for lack of proof of differential treatment and a comparator
Although the Claimant alleged discriminatory transfers, derogatory remarks and unequal treatment after his cancer diagnosis, he did not identify the employee(s) against whom he was treated differently or the specifics of the differential treatment. Without evidence of unjustified differential treatment compared to others in the same category, the claim fails.
Legal principles established
#- Constructive dismissal arises where the employer's conduct constitutes a significant breach going to the root of the employment contract
- Any change to terms of employment, including placing an employee on unpaid leave, requires consultation with the employee and written notification under section 10(5) of the Employment Act
- A party alleging a concluded full and final settlement must prove the claimant's consent to it; payment without such consent leaves the claimant free to pursue the claim, subject to credit for the sum paid
Court orders
#- 1.Payment of Kshs 1,192,904 being 8 months' compensation for constructive dismissal (8 x Kshs 149,113)
- 2.Payment of Kshs 298,226 as unpaid annual leave for 2019 and 2020 (Kshs 149,113 x 2)
- 3.Payment of Kshs 2,236,695 as withheld salary for the 15 months from April 2020 to June 2021 (15 x Kshs 149,113)
- 4.Total award of Kshs 3,727,825 less Kshs 1,850,000 already paid, leaving a balance of Kshs 1,877,825 less statutory deductions
- 5.The Respondent to issue the Claimant with a certificate of service
- 6.The Respondent to pay costs of the suit plus interest at court rates from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes (Employment and Labour Relations Court Act; Employment Act 2007)
Relief refused
#Damages for discrimination at the workplace
The Claimant did not identify the comparator or the manner of discrimination
Costs
The respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
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.
He was then sent on an indefinite unpaid leave. This in my view qualifies as a constructive dismissal as the respondents were treating him in a manner which did not conform to the envisaged employer-employee relationship.
The respondents did not however exhibit any evidence that this was the position as is expected under section 10(5) of the Employment Act 2007
it is my finding that though the claimant was paid kshs 1.85 million he left room to pursue his claim, which this court shall put into consideration in the final award.
The claimant should also be issued with a certificate of service.
The respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
Issues in the judgment
#The judgment states the withheld salary period as 'April 2020 and June 2021 – 15(fifteen) months' but the claim as pleaded and the submissions reference March 2020 to March 2021 / April 2020 to June 2021; the arithmetic of 15 months is applied without reconciling the differing periods
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owiti v Highlight Travel Limited t/a BCD Travel (Cause E699 of 2016) [2025] KEELRC 1111 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1111/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.