Arimi v Premiercare Diagnostic Narok Ltd (Cause E643 of 2023) [2026] KEELRC 2128 (KLR) (21 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 21st July 2026) **CAUSE NO. E643 OF 2023** **ROSEMARY ARIMI…………………………………………….CLAIMANT** **-VERSUS-** **PREMIERCARE DIAGNOSTIC NAROK LTD.…………RESPONDENT** **JUDGMENT** **Introduction** 1. The Claimant was employed by the Respondent as Clinical Services Manager from 3rd April 2023 to 5th June 2023 when she resigned citing frustrations by the employer through delayed salaries and poor work environment. By a Statement of Claim dated 3rd August 2023, the Claimant sued the Respondent seeking the following reliefs: - 2. ***An order that the Respondent constructively dismissed her.*** 3. ***An order that the Respondent do pay her the balance of the salary for the months of April 2023 and June 2023 amounting to Kenya Shillings Four Hundred and Ten Thousand (Kshs. 410,000/=).*** 4. ***An order that the Respondent do pay her one month's salary in lieu of notice amounting to Kenya Shillings Two Hundred and Twenty Thousand (Kshs. 220,000/=).*** 5. ***General damages for the frustration caused to her.*** 6. ***The Respondent be ordered to compensate her for unlawful termination at the equivalent of twelve (12) months gross salary.*** 7. ***The Honourable Court do issue any such other order it deems fit to grant.*** 8. ***Costs of this suit.*** 9. ***Interest on (b), (c), (d), (e) and (g) at Court's rate from the time of filing the suit.*** 10. The Respondent filed a Response to the Statement of Claim dated 23rd October 2023 denying all the allegations by the claimant and averred that she voluntarily resigned from employment during her probation period. It averred that it obtained a licence to operate in January 2023 even before hiring the claimant. It admitted that there was salary delay to all its employees due to financial constraints but averred that it paid the claimant a total of Kshs.92,400. It averred that it attempted to resolve the dispute amicably but the claimant refused. It prayed for the suit to be dismissed with costs. **Evidence** 1. The Claimant testified as CW1 and adopted her witness statement dated 3rd August 2023 as her evidence in chief. She also produced six documents as exhibits. 2. In brief, she testified that she was employed by the Respondent on 3rd April 2023 in the position of Clinical Services Officer for a monthly salary Kshs. 220,000 being the net amount after statutory deductions. She stated that the respondent delayed her salary forcing her to resign from service. From April to the time of her resignation, she was paid only Kshs.10,000 as salary. 3. She further stated that the she was transferred to Syokimau branch after serving for two month but then she discovered that the branch had no licence to operate a medical institution, which exposed her to arrest by the regulators. She maintained that the respondent’s failure to pay her salary and to obtain licence to operate made her working environment unbearable and she resigned on 5th June 2023. 4. She testified that after filing this case, she was paid Kshs. 52,400/- via M-Pesa. She denied ever receiving any further payment of Kshs. 10,000/- through Co-operative Bank or any other payment all. 5. On cross examination she stated that she worked for only two months and resigned during the probation period. She admitted that clause 2 of her contract placed her on probation and that she was supposed to give seven days' notice before termination but she did not do so. 6. She denied that she was made aware of financial constraints during her interview and that her contract was clear about her salary. She stated that she initially resigned in May 2023 because of lack of pay and also operational challenges. She was working from Narok and because of lack of pay, she requested to work remotely while following up on the licence for Syokimau. 7. She admitted that the terminal dues sheet filed bythe respondent showed that she was paid Kshs. 30,000/- and Kshs. 52,000/-. She also acknowledged that Kshs. 10,000/- was paid to her account. She acknowledged that the next page showed a payment of Kshs. 30,000/- on 12th May 2023. She denied knowledge that other employees' salaries were delayed. She confirmed that the email dated 2nd August 2023 talked about an agreed salary payment plan but she maintained that there was no such agreement. 8. She admitted that the licence for the Respondent in Narok dated 1st January 2023 and printed on 26th February 2023, was given before she joined the Respondent. however, she clarified that the licence she was pursuing was for Syokimau Laboratory. She admitted that the email dated 26th May 2023 from the Director informed her that the issue of Licence for Syokimau had been sorted. 9. She maintained that failure to pay her salary and lack of licence at Syokimau rendered the work environment unbearable. She stated that there was also an allegation of fraud with respect to Narok Licence and threat of closure of the Lab in Narok and Syokimau. 10. In re-examination, the Claimant testified that the email dated 26th May 2023 was not copied to her. She confirmed that the Respondent was her employer and it had branches in Kitengela, Syokimau, Oloitokitok and Narok. She stated that each lab is supposed to have its own licence and without a licence, the person working there is at the risk of arrest by regulators. She denied being a party to any salary payment plan and maintained that there was allegation of fraud in payment for the licence. 11. The Respondent called Ms. Everlyne Adhiambo Ojwang as RW1 She adopted her written statement dated 2nd April 2024 as her evidence in chief and produced 8 documents as exhibits. 12. In brief, she stated that she is currently working for IM Bank but previously she was employed by the respondent as its Administrator. She confirmed that the Claimant was employed by the respondent on 3rd April 2023 and her salary was negotiated with full knowledge that the Respondent was facing financial challenges. They also needed to recruit someone with the ability to grow patient numbers particularly in the Theatre department, Maternity department and inpatient unit, but unfortunately by the time the Claimant resigned, there was no much improvement in the patient numbers. 13. She stated that the Claimant was employed in Narok, with the flexibility to work in any branch of the Respondent, and after a month or so, the Claimant preferred to work in Syokimau branch, Machakos County since her family was in Kitengela. However, the company's greatest need was in Narok as Syokimau was not only overstaffed in the clinical and operations department, but also unable to pay her being a new entity. She admitted that Narok, where she was initially posted, was struggling with delayed invoice payments and therefore unable to pay salaries on time. 14. She stated that the Claimant was made aware of the unique challenges in Narok during the three stage interview and had pledged to turn it around. The options given to her were to onboard her after three months of stabilizing operations or for her to come in immediately, knowing the unique challenges of the branch, and she chose the latter. 15. She maintained that payment of her salary delayed owing to reasons perfectly known by the Claimant as a senior manager. She contended that the Respondent was working towards paying her and as at the time the Claimant was filing this suit, she had been paid Kshs. 92,400/-. 16. She stated that the Claimant was never subjected to work related frustrations as she performed her duties and she ever communicated any to the Respondent in writing. She stated that they made a payment plan for each employee in Narok whose salaries had been delayed but the Claimant declined to enter into the arrangement. 17. She further stated that the Claimant did not undertake additional duties and maintained that all duties were well within the scope of her job description as set out in the contract of Employment. 18. She stated that whilst part of the Claimant's duties was to ensure that the Respondent was compliant with clinical processes, and not to represent the Respondent at the KMLTTB as she lacked the necessary credentials of a trained lab technologist. 19. She further stated that the Respondent had a licence to operate which was obtained and in place from January 2023, even before the Claimant was employed by the respondent. She also stated that the Respondent, had already paid for the licence and it was just waiting for inspection from the relevant authorities. 20. She stated that the Claimant voluntarily resigned from employment during her probation period and denied the alleged constructively dismissal. She stated that the failure to pay was not deliberate. She contended that the only frustration the Claimant faced was delayed salary and nothing else. 21. She clarified that the Respondent here is a separate entity from Premier Care Diagnostic Syokimau Limited and the directors are different except one. 22. On cross examination, she confirmed that the Claimant was employed by the Respondent herein, and by an email dated 26th May 2023, written by Stephen Ojwang, she transferred to Syokimau branch. She also admitted that the email confirmed that the branch at Syokimau belonged to the Respondent. 23. She stated that she was only responsible for Narok and did not know whether Syokimau branch had a lab licence. She confirmed that there was an Operations Manager at Syokimau. 24. She contended that she prepared the salary payment schedule (payroll) in pages 10 and 11 of the Respondent's bundle but confirmed that had not produced the cheque used to pay the salary in the payroll. She contended they used to deposit the payroll and the cheque to their Bank and if a cheque was not used, they deposited the payroll for direct debit from the account. 25. She did not produced a bank statement to prove payment but stated that the Claimant's bank statement would have clarified the payment. She stated that the respondent’s bank statement would only show the total sum debited against the cheque issued on the payroll and the payee. However, she confirmed that there were delays in paying the Claimant's salary. 26. In re-examination, she reiterated that Syokimau Lab and Narok Lab were incorporated separately. She maintained that upon payment of salaries, the respondent’s account statement does not reflect the individual employee but the total amount debited. She stated that if there is no payment to an employee's account, the money would bounce back, but that never happened. **Submissions and the issues for determination** 1. After the close of the hearing, the parties filed written submissions. The Claimant’s submissions are dated 20th February 2026 while the Respondent’s submissions are dated 24th February 2026. Having considered the pleadings, evidence and the submissions, there is no dispute that the claimant was employed by the respondent from 3rd April 2023 to 5th June 2023 when she resigned citing frustrations by the respondent through salary delays and lack of licence to operate a medical institution. The main issues for determination are : - 2. Whether the Claimant was constructively dismissed by the Respondent. 3. Whether the reliefs sought are merited. **Analysis** 1. **Constructive Dismissal** 2. The Claimant contended that she was constructively dismissed by the Respondent through non-payment of salary, and unconducive working environment caused by respondent’s failure to obtain a licence to operate the medical institution, which exposed her to the risk of arrest by the regulator. However, the Respondent contended that the Claimant voluntarily resigned during her probation period and was not constructively dismissed. 3. I have considered the evidence adduced by the two sides and sought guidance from the cited authorities. The Black's Law Dictionary (9th Edition) defines constructive dismissal as: ***“A termination of employment brought about by the employer making the employee's working conditions so intolerable that the employee feels compelled to leave.”*** 1. In the English case of **Western Excavating (ECC) Ltd v. Sharp** [1978] ICR 222 Lord Denning MR articulated the meaning of constructive dismissal as follows:- ***“ If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct.”*** 1. Locally, this Court, in the case of **Maria Kagai Ligaga v. Coca Cola East and Central Africa Ltd** **(Cause No. 611 [N] of 2009)** [unreported], held that:- ***“Constructive dismissal occurs where an employee is forced to leave his job against his will, because of employer's conduct. Although there is no actual dismissal, the treatment is sufficiently bad, that the employee regards himself as having been unfairly dismissed.”*** 1. In the case of **Nyambunga v. Catholic University of Eastern Africa** **[2025] KEELRC 2716 (KLR)** this court stated paragraph 63 as follows: ***“It should also be appreciated that not every involuntary resignation amounts to constructive dismissal. The threshold for constructive dismissal is achieved where the involuntary resignation has a direct causal link with the employer's conduct, which may reasonably be described as intolerable. It cannot be said to be constructive dismissal when an employee resigns to get out of a tight spot.”*** 1. The Court of Appeal, in the case of **Coca Cola East & Central Africa Limited v Maria Kagai Ligaga** **[2015] KECA 394 (KLR)** held that: ***“In constructive dismissal, the issue is primarily the conduct of the employer and not the conduct of the employee. In other words, an employer is required not to behave in a way that amounts to a repudiation breach of contract.”*** 1. In the case of **Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd [2013] KEELRC 920 (KLR)** this Court held that:- ***“A resignation, under the doctrine of constructive dismissal should be prompt otherwise the employee may be taken to have acquiesced in the employer's intolerable conduct.”*** 1. Based on the above authorities, the basic ingredients of constructive dismissal are that:- 2. The employer must be in breach of the contract of employment; 3. The breach must be fundamental as to be considered a repudiatory breach; 4. The employee must resign in response to that breach; and 5. The employee must not delay in resigning after the breach has taken place, otherwise the Court may find that the breach was waived. 6. In this case the claimant testified that the respondent failed to pay her salary as and when it fell due, and then transferred her to work at its sister company’s medical facility in Syokimau, which had licence to operate. RW1 admitted that the respondent delayed to pay salary to all its employees including the claimant due lack of funds. Failure to pay salary to an employee is a fundamental breach that goes to the core of the contract of service and amounts to a repudiatory breach. 7. As regards the licence to operate syokimau branch, she produced a licence for the respondent issued before the claimant joined the respondent. However, that evidence did not rebut the claimant’s evidence since RW1 admitted that Syokimau branch was owned by a distinct entity from the respondent. The licence for the respondent cannot be used to operate the facility owned by a different company. 8. In view of the said repudiatory breach of contract and also for deploying the claimant to work in a sister company’s medical facility without the required licence, where she risked arrest by the regulator, I find that the resignation by the claimant was not voluntary. 9. As regards timely resignation, the respondent submitted that the Claimant first resigned by email dated 13th May 2023 by serving a 7 days notice but the withdrew it by an email dated 20th May 2023 but proposed to work remotely. Thereafter she held discussions to resolve payment grievance but on 5th June 2023, she tendered another resignation letter citing frustrations by the employer’s conduct. It would appear that the discussion held about payment grievance did not bear the desired fruit and the claimant decided to quit the job altogether. 10. Whichever way one looks at the facts of the case, it is evident that the claimant did not acquiesce the respondent’s conduct. She resigned even before completing the three months probation period. 11. In the circumstances of the case, I hold that the Claimant has proved on a balance of probability that she was constructively by the respondent through its unlawful conduct. In my view constructive dismissal can occur during probation period if the employee is forced to resign by the conduct of the employer. Probation contract is not a “free pass” where an employee is denied her labour rights. **Reliefs** 1. In view of the foregoing conclusion I find that the claimant is entitled to and that she was constructively dismissed, the prayed. For the same reason, I find that the claimant is entitled to salary in lieu of notice plus compensation for unfair termination under section 49 of the Employment Act since constructive dismissal is essentially an unfair termination. 2. Since the claimant was still on probation period, Clause 2 of her contract provided for seven days notice before termination or salary in lieu of notice. Her monthly salary was Kshs.220,000 and therefore seven days salary equals Kshs.51,333.33. 3. As regards compensation for the unfair termination, I award 14 days gross salary considering her short service of one month, she was still serving probation period and also that she did not cause the separation through misconduct. consequently, she will get Kshs. 110,000 as compensation for unfair. 4. Concerning the claim for unpaid salary I note that the Claimant was employed on 3rd April 2023 and resigned on 5th June 2023. Her salary was Kshs. 220,000/- per month net. The Respondent produced evidence of payments made to the Claimant. The Claimant confirmed receiving Kshs. 52,400/- and Kshs. 10,000/-. She also confirmed receiving Kshs. 30,000/- on 12th May 2023. The total payments made to the Claimant as per the evidence on record amount to Kshs. 92,400/. 5. The Claimant's salary for the period she worked from 3rd April 2023 to 5th June 2023 would be as follows: For April 2023, she worked the full month from 3rd April to 30th April, which is 27 days. The daily rate would be Kshs. 7,333.33 (220,000/30). For 27 days, the amount would be Kshs. 198,000/-. For May 2023, she worked the full month, which is Kshs. 220,000/-. For June 2023, she only worked five days and as such 5/30 x Kshs. 220,000/- equals Kshs.36,666.66. The total salary earned in the period worked was Kshs. 454,666.66 less Kshs 92,400 leaving an outstanding balance of Kshs. 362,266.66, which award to the Claimant. **Conclusion** 1. I have found that the Claimant was constructively dismissed by the Respondent. I have further found that the Claimant is entitled to some of the reliefs highlighted above. Consequently, I enter Judgment for the Claimant against the Respondent as follows: - 2. The Claimant was constructively dismissed by the Respondent. 3. Notice Kshs. 51,333.33 4. Compensation Kshs. 110,000.00 5. Unpaid salary Kshs. 362,266.66 **Total Kshs.523,599.99** 1. The award is subject to statutory deductions. 2. The Claimant is awarded costs and interest at court rate from the date of this Judgment. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 21ST DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** No appearance for Claimant Miss. Kingara for Respondent