Metto v Mediheal Group of Hospitals (Cause E052 of 2024) [2025] KEELRC 2734 (KLR)
The bottom line
#A Kenyan court rejected a nurse's constructive dismissal claim because she resigned without citing her employer's breach, awarding only a certificate of service.
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 was constructively dismissed by the Respondent.
- 2.Whether the Claimant is entitled to the reliefs sought.
Key legal issues
#Whether withholding of salary for five months constituted constructive dismissal
No, constructive dismissal was not proved because the Claimant did not resign citing the employer's breach; she simply walked out, which was itself a breach.
The court adopted the contractual and unreasonable tests in Coca Cola v Lugaga and the requirement in Henry Ochido that constructive dismissal entails termination by the employee on grounds of a fundamental breach. While non-payment of salary is a repudiatory breach under Section 17 of the Employment Act and Article 41, the Claimant neither pleaded nor proved a resignation or termination of employment attributable to the breach, defeating the claim.
Entitlement to terminal dues, service pay, leave and maternity benefits
All monetary reliefs failed for want of proof; only a certificate of service was awarded.
The suit proceeded undefended but the claimant still bore the burden of proof. The only pay slip produced was for November 2022, undermining the claim for five months' arrears; NSSF contributions disentitled her to service pay; and there was no evidence on maternity leave or unpaid leave. Section 51(1) of the Employment Act entitled her to a certificate of service regardless.
Legal principles established
#- Non-payment of salary can amount to a repudiatory breach justifying constructive dismissal, but the employee must establish a termination of employment on grounds of that breach, ordinarily evidenced by a resignation letter citing the breach.
- An employee who abandons employment without resigning is herself in breach and cannot claim compensation where both parties are in breach.
- A contributing NSSF member is not entitled to service pay; an employee is entitled to a certificate of service under Section 51(1) of the Employment Act.
Court orders
#- 1.The claim fails except for the prayer for issuance of a Certificate of Service
- 2.The Respondent to issue a Certificate of Service to the Claimant pursuant to Section 51(1) of the Employment Act
- 3.Each party shall bear its costs of this suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 41 of the Constitution and the Employment Act, 2007 (first-instance ELRC employment claim)
Relief refused
#Declaration that employment was procedurally and substantively unfair and amounted to constructive dismissal
Constructive dismissal not proved; no resignation letter citing the breach
Declaration that 2 months' unpaid maternity leave was unfair labour practice / 3 months maternity leave salary
No evidence that the Claimant went unpaid or was denied maternity leave
12 months' salary as compensation for unfair termination
Unfair/constructive dismissal not proved
5 months' salary arrears
No evidence of employment after November 2022; only one pay slip produced
One month's salary in lieu of notice
Unfair termination not proved
Service pay
Claimant was a contributing NSSF member
Leave dues
No evidence that the Claimant never went on leave
Costs
Each party shall bear its 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.
For the court to find that there was constructive dismissal, there must be a termination of employment by the employee on grounds of breach of a fundamental term of employment contract by the employer.
The long delay in payment of salary must be followed by a resignation letter citing the grounds of resignation to be the breach of fundamental terms of the contract by the employer.
Two wrongs do not make a right and a person who breaches her contract because the other party has breached the contract cannot claim compensation from the other as both parties are in breach.
In conclusion, the claim herein fails with the exception of the prayer for the Respondent to issue certificate of service to the Claimant.
Each party shall bear its costs of this suit.
Issues in the judgment
#Internal inconsistency on the employment period: the pleadings and testimony place non-payment of salary from July 2023 to December 2023, yet the court found no evidence of employment after November 2022 based on the single pay slip produced.
The claim is described as constructive dismissal yet the pleadings state the employment 'was unfairly terminated' in December 2023, an inconsistency the court noted.
Pleadings inconsistently state salary was withheld 'from July 2023' and 'from August (sic) 2023'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Metto v Mediheal Group of Hospitals (Cause E052 of 2024) [2025] KEELRC 2734 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2734/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.