Kisenga v Ongair Limited (Cause E1090 of 2024) [2025] KEELRC 3004 (KLR)
The bottom line
#A Kenyan court ruled that an employee forced to resign over months of unpaid salary was constructively dismissed and deserved compensation.
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 resignation constituted constructive dismissal amounting to unfair termination
- 2.Whether the Claimant is entitled to the reliefs sought
- 3.Whether the Claimant is entitled to costs of the suit
Key legal issues
#Whether the Claimant's resignation constituted constructive dismissal amounting to unfair termination
Yes. The chronic non-payment of salary was a repudiatory breach going to the root of the contract, making the resignation involuntary and a constructive dismissal/unfair termination.
Applying the Court of Appeal principles in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga, the court found the employer's failure to pay salary was a fundamental breach going to the root of the contract. Email correspondence showed the employer admitted salary arrears. The objective test was met and causation established: the resignation was driven by chronic non-payment and related financial stress, including unpaid rent. The resignation was therefore deemed a constructive dismissal, i.e. unfair termination under Section 45(1) of the Employment Act.
Whether claims under the 2016 contract were available
No. They were time-barred under Section 89 of the Employment Act, having expired before the suit was filed on February 10, 2020.
The court noted the claim was first filed in court on February 10th, 2020, while the 2016 contract claims required filing within three years, i.e. before May 1st, 2019. The court accordingly confined its determination to the contract of May 1st, 2017, while using the 2016 period only to compute the total length of service for compensation.
Quantum of salary arrears
Kshs. 502,450/-, being the agreed Kshs. 652,450/- under the October 2018 settlement less Kshs. 150,000 paid in instalments.
The court found that by email of October 17, 2018 the claimant agreed to forgo three months' salary, which the employer accepted on October 30, 2018, fixing the due salary at Kshs. 652,450. The claimant admitted receiving instalments totalling Kshs. 150,000 (Kshs. 45,000, 40,000, 45,000 and 20,000). Claiming the full figure without deducting these payments would amount to unjust enrichment; interest at court rates from filing was added to compensate for the withholding.
Whether the claimant was entitled to an order for remission of statutory dues
No, save for a refund of NSSF deductions of Kshs. 14,040 for May 2017 to June 2018.
The NSSF statement showed zero remittance from 2016 despite deductions. Since the claimant was no longer an employee, an order of remittance had no basis, so a refund of her deducted NSSF contributions was ordered. PAYE and NHIF are monies belonging to the statutory entities, not the claimant, and following Justice Ndolo's decision in Kenneth Odhiambo Akumu v Allied East Africa Limited those claims were disallowed.
Legal principles established
#- Payment of salary is central to the employment relationship and failure to pay salary when due amounts to repudiation of the contract; resignation driven by chronic non-payment is a constructive dismissal, i.e. unfair termination
- Unremitted statutory deductions such as PAYE and NHIF are payable to the respective statutory bodies and not to the individual employee
- Claims under an employment contract must be filed within three years under Section 89 of the Employment Act; claims under an expired earlier contract that are not filed within that period expire
Court orders
#- 1.A declaration that the Claimant was constructively dismissed from employment by the Respondent
- 2.Compensation for the wrongful dismissal equivalent of 4 months salary @ Kshs. 108,257 totalling Kshs. 433,028/-
- 3.Payment of salary arrears of Kshs. 502,450/-
- 4.An order for refund of NSSF contributions in the total sum of Kshs. 14,040/-
- 5.A mandatory injunction directed to the Respondent to remove the Claimant's name and image from its website forthwith
- 6.Interest on the total sum of Kshs. 949,518 (b, c and d above) at court rates from the date of filing suit until payment in full
- 7.Costs of the suit to the Claimant
- 8.Stay of 30 days
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 and labour relations claims under Article 162(2) of the Constitution and the Employment Act (claims founded on the Employment Act, including Section 45, 49, 17 and 89)
Relief refused
#Unpaid salary of KES 772,450/- as pleaded
The court limited claims to the 2017 contract (2016 contract claims time-barred) and deducted Kshs. 150,000 already paid under the settlement, awarding only Kshs. 502,450/-
One year's salary (12 months) as compensation for unfair termination
The court awarded only 4 months' salary considering the length of service and circumstances
Order directing the Respondent to remit statutory dues (PAYE and NHIF)
Such dues are payable to the respective statutory bodies and not to the Claimant
Order for remission of NSSF contributions as claimed
The Claimant was no longer an employee, hence no basis for a remittance order; a refund of deductions was ordered instead
General, exemplary and aggravated damages
No remedy of aggravated damages exists under Section 49 of the Employment Act; claimant adequately compensated
Costs
Costs of the suit 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.
a. A declaration that the Claimant was constructively dismissed from employment by the Respondent. b. Compensation for the wrongful dismissal equivalent of 4 months salary @Kshs, 108257 total sum of Kshs. 433,028/- c. Payment of salary arrears of Kshs. 502450/- .
As a result, the resignation is deemed a constructive dismissal, and thus, an unfair termination of employment.
Payment of salary is central to the employment relationship, and the failure to pay salary when it is due amounts to repudiation of the contract.
With regard to the claim for unremitted statutory deductions, the only thing to say is that any such dues are payable to the respective statutory bodies and not to the Claimant.
The court concluded that the claim, without deducting the paid amounts, amounts to unfair enrichment. It found that the total outstanding salary is Kshs. 652450 minus the Kshs. 150000 paid, resulting in a balance of Kshs. 502450.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 30TH DAY OF OCTOBER 2025. J.W. KELI, JUDGE.
Issues in the judgment
#Internal inconsistency on compensation quantum: the body of the judgment awards 5 months' salary but the final orders award 4 months' salary
Chronological inconsistency in filing dates: the memorandum of claim is dated 29th January 2025, but the supporting verifying affidavit and documents are dated 19th September 2023, a supplementary list of documents is dated 30th July 2019, and the court records the claim as first filed in court on February 10th, 2020
Inconsistency in the instalment payments credited: the demand-letter narrative states payments of Kshs. 45,000 (Oct 2018), 40,000 (Nov 2018), 45,000 (Dec 2019) and 20,000 (Jan 2019), while the narrative elsewhere states instalments of Kshs. 45,000 ran consistently until 19th February 2019 when Kshs. 20,000 was paid
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisenga v Ongair Limited (Cause E1090 of 2024) [2025] KEELRC 3004 (KLR)", Case Analysis (2025). ELRC Cause (memorandum of claim dated 29th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3004/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.