Kingiri v Surtech Ltd & another (Appeal E030 of 2025) [2026] KEELRC 2440 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E030 OF 2025** **SAMUEL YIDA KINGIRI APPELLANT** *VERSUS* **SURTECH LIMITED 1ST RESPONDENT** **BRITECH LIMITED 2ND RESPONDENT** (**Being an appeal from the judgment delivered on the 24 January 2025 by Hon Rawlings Liluma Musiegani at Nairobi in MCELRC E1981 of 2022)** **JUDGMENT** The appeal arises from the judgment delivered on 24 January 2025 at Nairobi, MCELRC E1981 of 2022. The appeal is because the learned magistrate erred in law and fact by misapprehending that this was a complaint of termination by notice rather than of constructive dismissal, thereby arriving at an incorrect decision. The learned magistrate erred in law and fact in failing to appreciate that there was no procedural fairness or substantive justification for the allegations of not showing up at the place of work, thereby arriving at a wrong finding and decision. The other ground of appeal is that the learned magistrate failed to find that the appellant had established that the respondent had constructively terminated the employment. He was entitled to compensation, damages, terminal dues, salary allowance, aggravated damages and all other prayers sought. The learned magistrate erred in law and fact by misapprehending that the unpaid and accrued leave of 166 days was for the respondent’s managing director and not for the appellant. The background of the appeal is the claim filed by the appellant on the basis that he was employed by the 1st Respondent in 1988 as a driver earning a gross salary of Kshs. 80,472. On 3 July 2018, the 1st and 2nd Respondents merged, sharing the same board of directors and management under the name Britech/Surtech Consulting Engineers Limited, which was not registered. He was not paid his monthly salary from September, 2021 to date. Such action resulted in a fundamental breach of the respondents' contract of employment and amounts to constructive dismissal. The breach of the employment relationship was by: 1. Failing to pay monthly salaries from September 2021. 2. Subjecting the appellant and his family to suffering, torture and poverty. 3. Failing to give reasonable notice to terminate employment. 4. Failing to communicate with the appellant on employment matters. 5. Failing to pay terminal dues. The appellant made several attempts to discuss his employment matters with the respondents without success. The appellant prayed for the following remedies: 1. A declaration that the appellant has been constructively dismissed from employment unfairly by the 1st and 2nd respondents 2. A declaration that the appellant’s employment was unlawfully, wrongfully and unfairly dismissed by the respondent. 3. The respondent to pay the appellant’s terminal dues at the rate of 15 days for 34 years from 1988 up to date 4. Damages for breach of contract 5. Compensation for unfair dismissal assessed at 12 months 6. Accrued leave Kshs. 223,213 7. Unpaid leave of Kshs. 80,472/= 8. 1 month salary in lieu of notice amounting to Kshs. 80,472 9. Aggravated damages 10. Certificate of service 11. Costs of the claim In reply, the respondent averred that the 1st respondent employed the appellant and that the appellant was earning a salary of Kshs.76,072 per month and was paid his salary up to November 2021, not September 2021, as alleged. The appellant was not terminated from employment, but due to the Covid-19 pandemic, available work temporarily decreased when the lockdown was imposed, and many employees agreed to stay away from work until conditions improved. The appellant was one of those employees. The appellant has been absent from duty since September, 2021. He was paid all his dues up to the time he left employment, and there are no outstanding dues. The respondent urged that the claim be dismissed with costs. The learned magistrate assessed the evidence and concluded that the 1st respondent was the appellant's employer. The learned magistrate held that, from the cross-examination, although the respondent was unable to prove the appellant's absconding from duty, the appellant admitted that he was not terminated. The appellant failed to show up for work due to delayed payments resulting from the COVID-19 pandemic, which the appellant also admitted. The court found that section 18 of the Act only allows an employee to accrue leave for up to 18 months. It was not clear from the leave application form dated 8 September 2020 that, contrary to the appellant’s claim for accrued leave, he instead owed the respondent a total of 166 days for leave. The appellant submitted that he produced evidence on the non-payment of salary for 14 months, failure to pay house allowance, medical expenses and school fees which definitely created intolerable working conditions and which was the main basis of the appellant’s case. In **Coca Cola East & Central Africa Limited versus Maria Kagai Ligagga [2015] KECA 394 (KLR),** the court held that an employee must demonstrate that his resignation was justified, the employer made a fundamental unilateral change in the contract of employment and the employee would have continued working had the employer not created intolerable working conditions. Failure to pay an employee’s salary is a fundamental breach and amounts to repudiation of the employment contract. The appellant duly highlighted the issue of unpaid salary for 14 months, from September, 2021 up to the material date of filing the suit on 17 November 2022. The trial court failed to make any finding on the issue of constructive dismissal or giving reasons The appellant further submitted that the alleged abscondment of duty was not proved. In **Nicholas Muasya Kyula versus Farmchem Limited [2012] eKLR,** the court held that where an employee commits an employment offence, a corresponding disciplinary hearing should be conducted to establish the truth thereof. There was no material evidence adduced by the respondent on the alleged abscondment by the appellant. Nor was there evidence of any disciplinary hearing to substantiate the allegations. The respondent submitted that the appellant was not terminated but chose not to report to work of his own volition. In **Rebecca N Nyangolo v Prashant Raval [2021] eKLR,** the court held that where an employee quits his or her work out of his or her own volition, there cannot be said to be termination, circumstances which the court should subject to measure using the weights provided for in Sections 41, 43 and 45 of the Employment Act. The appellant stopped reporting to work. The 1st respondent maintained the appellant as their employee, as he had a habit of absenteeism and was thought to return, until he filed the suit in the subordinate court. On the constructive dismissal, the respondent submitted that the Courts have variously held that there must be breach of contract of employment, the breach must be fundamental as to be considered a repudiatory breach, the employee must resign in response to that breach, and the employee must not delay in resigning after the breach has taken place, otherwise the Court may find the breach waived. The conditions are all mandatory and must be met. The appellant in this case did not meet these conditions to claim constructive dismissal. The claim for service pay does not arise in the absence of termination, and in any case, the 1st Respondent contributed to the NSSF and hence, under Section 35(6)(d) of the Employment Act, no service pay is payable. Further, the claim for service pay for 1988 is time-barred under section 90 of the Act, which requires the claim to be made within 3 years. The claim for leave days is mistaken, as the appellant took leave for 166 days more than he was entitled to, and the signed document for the same was produced in Court by the respondent and admitted by the appellant. **Determination** This is a first appeal. The court is mandated to review the record, reassess the findings and make a conclusion. This must be done with the understanding that the trial court had the benefit of hearing the witnesses. The appellant’s case is that since September 2021, the respondents have stopped paying the monthly salary, resulting in a breach of the employment contract and, thus, constructive dismissal. The respondents admitted that the appellant was paid until November 2021. However, employment was not terminated; due to the Covid-19 pandemic, available work temporarily decreased when the lockdown was imposed, and many employees agreed to stay away from work until conditions improved. The appellant was one of those employees. The learned magistrate heard the parties and held that there was abscondment of duty and, under Section 44(4)(a) of the Act, such constituted gross misconduct subject to termination of employment. The appellant admitted that there was no termination of employment; hence, the claims made were not justified, as the COVID pandemic prevented the appellant from reporting to work. Constructive dismissal of an employee arises when the employer, through its conduct, repudiates the employment relationship. To begin with, the respondent admitted that no payment of the due salary was made to the appellant from November 2021. Additionally, the alleged abscondment from duty, if any, was not addressed. Furthermore, the employer retains the duty to end employment by summoning the employee to attend and, where there is persistent absence, report the matter to the labour officer in terms of section 18(5) of the Act. None of the above was addressed. Hence, where the employer fails to pay the due salary to the employee, under section 44(3) of the Act, there is a fundamental breach of the employment contract. The affected party, the employee, has no obligation under such breach to claim the protection under the law. A claim of constructive dismissal then suffices, as held in [**Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/394/eng%402015-09-25)**.** The breach must be by the respondent. The party asserting such breach must demonstrate the particulars. In this case, the appellant set out the grounds upon which there was breach of the employment contract. These particulars are not contested, save that the respondent urges the court that there was desertion of duty. The court has recognised inability to attend work due to non-payment of salary as a justified cause. In **Centre for African Family Studies (CAFS) v Jonathan Spangler [2019] KECA 16 (KLR),** the court held that the non-payment of salaries for long periods of time places the employee under inhuman and degrading circumstances and that the employment contract no longer binds the employee. The employer initiates the termination of employment. Without a salary, the employee has no reason to report to work. In[**Ogada v Kwale International Sugar Co Limited [2026] KEELRC 1790 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1790/eng%402026-06-29), the court held that non-payment of salary places the employee in distress and renders him unable to feed himself, leading to a life of indignity. It is therefore not sufficient for the respondent, as the employer, to cite the COVID pandemic. Such a matter is put into perspective under section 40 of the Act. Where an operational matter or unforeseen circumstances render an employer's ability not feasible, the legal mechanism to protect the parties is section 40 of the Act. Leaving the employee at large, the respondent came into conflict with section 18 of the Act. In addressing a similar case of alleged abandonment of employment, the court in **Nyali Academy Service Limited t/a The Mombasa Academy v Muli [2023] KEELRC 2041 (KLR)** and in **Ayub Kombe Ziro v Umoja Rubber Products Limited [2022] KEELRC 141 (KLR)** held that the employer cannot lawfully plead abscondment without bringing the employment relationship to a close. The duty to terminate the employment relationship where the employee is alleged to be absent without authority rests on the employer. The lapse in addressing the alleged circumstances of the COVID pandemic, the lapse in failing to bring the employment relationship to a close, opened the respondent to a claim for constructive dismissal. The failure to pay the appellant's due salaries is unjustified and has resulted in a fundamental breach of the employment relationship. The 1st respondent's apparent breach of the employment contract, as the employer, was wrongful and unlawful, resulting in an unfair termination of employment. The appellant is entitled to notice pay at the last due salary of KSh. 63,629. In cases of unfair termination of employment, compensation is due. The appellant worked for the 1st respondent from August 1988 until September 2021, when salary payments ceased. The long service of over 33 years was without any record of poor performance. None is filed in terms of section 45(5) of the Act. A compensation of 10 months' gross salary is hereby found appropriate at KSh. 63,629 x 10 + Ksh. 636,290. The appellant is seeking payment of salaries from September 2021 to date. However, the respondents confirmed there was payment until November 2021. Indeed, the appellant did not offer any service to the respondents after September 2021. The constructive dismissal addressed with compensation shall suffice. On the claim for damages for breach of contract, aggravated damages thereof, as addressed above, the issue was constructive dismissal, which is particularised and addressed. In the written submissions, the appellant did not address how the loss of employment was mitigated. On the accrued leave days, from September 2021, the appellant was not at work and was paid until November 2021. This allows the 1st respondent to be in good standing for assessing the dues owed to the appellant. Indeed, as held by the relevant magistrate, annual leave is governed by section 28 of the Act and may be accumulated for up to 18 months. The payments until November 2021, without rendering any service, shall suffice. On service pay, the payment statement filed by the appellant confirms payment of statutory dues. Under section 35(5) of the Act, service pay is not due. On costs, the appeal analysed above is well founded. The claim for costs is justified and shall issue for the appeal and trial court. **Accordingly, the judgment in Milimani CMELRC E1981 of 2022 is hereby set aside. Judgment is entered for the appellant against the 1st respondent in the following terms:** 1. **Employment terminated through constructive unfair dismissal.** 2. **Compensation Ksh. 636,290.** 3. **Notice pay Ksh. 63,629.** 4. **Certificate of service.** 5. **Costs of the appeal and trial court proceedings.** **Delivered in open court this 31st day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**