https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1964

Kemboi v Healthkink Matcare Ltd (Employment and Labour Relations Cause E897 of 2023) [2026] KEELRC 1964 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1964 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E897 of 2023 AN Mwaure, J July 10, 2026 Between Cosmas Cheruiyot Kemboi Claimant and Healthkink Matcare Limited Respondent Judgment Introduction 1.The Claimant commenced this suit vide Statement of Claim undated seeking the following orders that:a.A declaration that the Respondent unlawfully and unfairly dismissed/terminated the Claimant’s services.b.Judgment be entered against the Respondent for terminal benefits amounting to Kshs.2,692,307.7/=.c.Interest on (b) above at 14% from the day of filing the claim herein until payment in full.d.Costs of the suit.e.Any other or further relief that this court may deem just and fit to grant in the circumstances. Claimant’s case 2.The Claimant avers that he was employed by the Respondent on 1st July 2017 as a sonographer earning Kshs.50,000/= per month, later increased to Kshs.100,000/= in November 2019 due to his performance, and converted to permanent employment in July 2021. 3.The Claimant contends that in July 2022 the Respondent falsely accused him of failing to bill a procedure, suspended him despite evidence that he was not on duty, and prolonged the suspension until he was compelled to resign, amounting to constructive dismissal. 4.He further claims denial of housing allowance, annual leave, paternity leave, and harsh working conditions, including being recalled from sick leave and forced to work consecutive shifts. 5.The Claimant argues that the Respondent failed to remit provident fund contributions and refused to compute his terminal dues, amounting to unfair labour practices. He seeks compensation for constructive dismissal, one month’s salary in lieu of notice, unpaid house allowance, provident fund contributions, and leave days. 6.He prays for a declaration that his dismissal was unlawful and unjustified, stressing that the Respondent’s conduct caused him severe economic injury, including loan defaults and financial hardship, and that justice demands full redress. Respondent’s memorandum of response 7.The Respondent opposed the statement of claim via a memorandum of response dated 14th January 2025. 8.The Respondent denies the allegations raised in the memorandum of claim and maintains that the Claimant’s resignation was voluntary and not a case of constructive dismissal. 9.While acknowledging the salary increments and conversion to a permanent contract, the Respondent avers that these were standard company policy rather than recognition of exceptional performance. 10.The Respondent contends that the Claimant was on duty on 3rd April 2022, logged into the imaging machines using his unique credentials, and was therefore responsible for the procedural irregularities. 11.The Respondent emphasizes that the Claimant was only suspended briefly, from 6th to 22nd July 2022, with full benefits, to facilitate investigations, and that he resigned on 19th July 2022 before the disciplinary process was concluded. 12.The Respondent denies allegations of harsh working conditions, denial of leave, or exclusion of house allowance, insisting that the Claimant was remunerated through a consolidated salary package inclusive of allowances and granted all statutory leave entitlements. 13.The Respondent further denies liability for the Claimant’s personal financial obligations, including loan defaults, and maintains that pension contributions were duly remitted to a third‑party provider. 14.The Respondent rejects the Claimant’s computation of terminal dues as exaggerated, reiterates that no valid claim exists, and asserts that all actions taken were lawful, fair, and consistent with the Employment Act and company policies. Claimant’s evidence in court 15.CW1, the Claimant, adopted his witness statement dated 3rd November 2023 together with the bundle of documents dated even date marked as exhibits 1 to 5 respectively as his evidence in chief. 16.CW1 testified that he worked for the Respondent for five months, during which he received house allowance on overtime, but was often recalled to work even when sick. He urged the Court to grant judgment in his favour as per the statement of claim. 17.In cross‑examination, CW1 confirmed having a contract dated 1st November 2019 which provided for a consolidated salary, noting that while “consolidated” implied inclusion of house allowance, his payslip did not reflect it. He stated that he applied for leave but was not granted, and by 19th January 2022 he had accrued 37 leave days. He further explained that he was recalled from sick leave on 28th December 2021 through phone calls and emails directing him to resume work, and later resigned in July 2022 amidst disciplinary proceedings. He added that although he received an email calling him to sign disciplinary hearing minutes, he was not invited to do so in person. 18.CW1 recounted that he was suspended on 22nd July 2022 but had already dated his resignation letter 18th July 2022. He explained that the disciplinary hearing arose from allegations of unbilled procedures under his login credentials, though he maintained he was on night shift and had arranged for a colleague, Mureria, to cover for him. He logged in briefly on 3rd April 2022 before leaving due to illness, and insisted that the report attributed to him was not authored by him. He stated that he was paid full benefits during suspension but resigned because he felt the employer’s actions were consistently against him and anticipated dismissal. 19.In re‑examination, CW1 reiterated that although his salary was consolidated, his payslip did not indicate any house allowance. Respondent’s evidence in court 20.RW1, Jacqueline Kiame, the Respondent’s Human Resource Manager, adopted her witness statement dated 14th January 2025 together with the list of documents dated even date marked as exhibits 1 to 9 as his evidence in chief. 21.RW1 testified that the claim should be dismissed, asserting that CW1 resigned voluntarily in the midst of a disciplinary hearing and was therefore not constructively dismissed. In cross‑examination, RW1 explained that CW1’s salary was consolidated and inclusive of house allowance, hence the payslip did not separately reflect it. She added that CW1 had utilised his leave days, though no records were produced to confirm this, and clarified that pension contributions of Kshs. 5,000/= were duly remitted to a third‑party provider in accordance with the contract dated 12th July 2021, which expressly provided for a provident fund. 22.In re‑examination, RW1 stated that the provident fund was managed by Britam and governed by specific rules requiring employees to sign withdrawal forms. She referred to CW1’s email of 19th January 2022, which confirmed that he had 37 pending leave days. RW1 reiterated that the consolidated salary encompassed both basic pay and house allowance, and noted that there were judgments previously rendered in favour of the hospital on this issue. 23.The court directed parties to file their respective written submissions. Claimant’s submissions 24.The Claimant relied on the Court of Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR) which laid down the principle that constructive dismissal arises where the employer’s conduct amounts to a repudiatory and fundamental breach of contract, with a clear causal link to the employee’s termination. In the present case, the Claimant testified that he was falsely accused of misconduct, suspended repeatedly, and ultimately forced to resign, citing denial of paternity leave, annual leave, and recall from sick leave in his resignation letter. He argued that these actions were deliberate attempts to frustrate him into resignation, and the Respondent failed to rebut this evidence. 25.To support his case, the Claimant relied on statutory provisions including section 28(1)(a) of the Employment Act and Clause 11(e) of his contract on annual leave entitlements, section 35 of the Employment Act and clause 14 of his contract on notice pay, section 31 of the Employment Act on housing allowance, clause 10(b) of his contract on provident fund contributions, section 49(1)(h) of the Employment Act on compensation for unfair termination, and section 51 of the Employment Act on issuance of a certificate of service. 26.The Claimant also relied on case law to reinforce his position. In Milton M. Isanya v Aga Khan Hospital Kisumu [2017] KEELRC 571 (KLR), the court held that resignation without intolerable conditions does not amount to constructive dismissal, distinguishing his case where intolerable conditions were evident. He further cited Victor Sendeu Omwenga v General Timothy Misiani Orwenyo t/a Gmt Services [2019] KEELRC 998 (KLR), Alloise Ngugi Muia v Green Pot Enterprises Limited [2020] KEELRC 239 (KLR), and Meshack Kiio Ikulume v Prime Fuels Kenya Limited [2013] KEELRC 921 (KLR), which emphasized the employer’s duty to maintain leave records and the employee’s entitlement to accrued leave where records are absent. On the housing allowance, he relied on Moses Kiprop Meli v Riley Falcon Security Services Ltd [2021] KEELRC 2344 (KLR), where the court awarded a housing allowance after finding that the payslips excluded it. 27.On this basis, the Claimant sought reliefs including accrued annual leave amounting to Kshs.242,307.70/=, one month’s salary in lieu of notice amounting to Kshs. 100,000/=, unpaid house allowance amounting to Kshs. 690,000/=, withheld provident fund contributions amounting to Kshs.460,000/=, and maximum compensation for constructive dismissal amounting to Kshs. 1,200,000/=, together with a certificate of service and costs. 28.The Claimant submitted that he had proved his case on a balance of probabilities, and urged the court to award full compensation, stressing that the Respondent’s conduct amounted to unlawful and unfair labour practices in breach of both statutory provisions and contractual obligations. Respondent’s submissions 29.The Respondent submitted that it denies the Claimant’s allegations of constructive dismissal, arguing that none of the complaints meets the legal threshold set out in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga(supra). The Respondent contended that the suspension was a short administrative measure (6th–22nd July 2022) on full pay to facilitate investigations, not a repudiatory breach. 30.On paternity leave, the Respondent submitted that no evidence was produced to show the Claimant ever applied or was denied, and by continuing to work thereafter, he acquiesced to the alleged breach. Similarly, the claim of recall from sick leave is dismissed as unsupported, with the Respondent noting that the Claimant remained in employment long after the alleged incident, severing any causal link to his resignation. 31.The Respondent submitted that the resignation on 19th July 2022 was voluntary, tendered during an ongoing disciplinary process, and not caused by intolerable conditions. Consequently, the Respondent argued that claims for notice pay and compensation for constructive dismissal are unsustainable. 32.On house allowance, the Respondent relies on Section 31(2)(a) of the Employment Act, asserting that the Claimant’s contract provided for a consolidated salary inclusive of housing, defeating any separate claim. Regarding leave pay, the Respondent highlight contradictions between the Claimant’s pleadings and his own admission of 37 accrued days, stressing that final reconciliation was never completed due to his resignation before clearance. Finally, on provident fund contributions, the Respondent maintains that the scheme was administered by a third party, with no evidence of non‑remittance, making the claim untenable. 33.In conclusion, the Respondent submits that the Claimant failed to prove a repudiatory breach, failed to establish a causal connection between the alleged grievances and his resignation, and acquiesced in the circumstances he now relies upon. 34.The Respondent urged the court to dismiss the entire claim, including reliefs sought, as wholly unmerited. Analysis and determination 35.The court has considered the pleadings and submissions for the record; the issues for determination are as follows:i.Whether the Claimant was constructively dismissed by the Respondent.ii.If (i) above is in the affirmative, whether the Claimant is entitled to costs.iii.Who should bear the costs of the suit. 36.In Coca Cola East & Central Africa Limited V Maria Kagai Ligaga(supra) the Court of Appeal stated as follows:“The key element in the definition of constructive dismissal is that the employee must have been entitled to or have the right to leave without notice because of the employer’s conduct. Entitled to leave has two interpretations which give rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behaviour towards him was so unreasonable that he could not be expected to stay- this is the unreasonable test. The second interpretation is that the employer’s conduct is so grave that it constitutes a repudiatory breach of the contract of employment- this is the contractual test.” 37.The Court of Appeal further gave a breakdown of guiding principles when dealing with constructive dismissal as follows:a.What are the fundamental or essential terms of the contract of employment?b.Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer?c.The conduct of the employer must be a fundamental or 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.d.An objective test is to be applied in evaluating the employer’s conduct.e.There must be a causal link between the employer’s conduct and the reason for the employee terminating the contract; that is causation must be proved.f.An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination.g.The employee must not have accepted, waived, acquiesced or conduct himself to be estopped from asserting repudiatory breach; the employee must-within a reasonable time terminate the employment relationship pursuant to the breach.h.The burden to prove repudiatory breach or constructive dismissal is on the employee.i.Facts giving rise to repudiatory breach or constructive dismissal are varied. 38.In this instant case, the Claimant avers that he was employed as a sonographer from November 2019, later confirmed permanently in July 2021, and that in July 2022. He says the Respondent falsely accused him of failing to bill a procedure, suspended him despite not being on duty, and prolonged the suspension until he resigned, amounting to constructive dismissal. He further alleges denial of housing allowance, annual leave, paternity leave, and harsh working conditions, including recall from sick leave and consecutive shifts, as well as failure to remit provident fund contributions and failure to compute terminal dues all contributed to his choice to resign involuntarily amounting to constructive dismissal. The Respondent, however, maintains that the Claimant’s resignation was voluntary, emphasizing that the Claimant was on duty on 3rd April 2022 under his login credentials, was only suspended briefly from 6th to 22nd July 2022 with full benefits, and resigned on 19th July 2022 before the disciplinary process concluded. The Respondent denies claims of harsh conditions or unpaid entitlements, insisting paid Claimant consolidated salary inclusive of allowances, granted statutory leave, and that pension contributions were duly remitted to a third‑party provider. 39.The Respondent failed to adduce sufficient evidence to justify the allegations against the Claimant in line with sections 107, 108, and 109 of the Evidence Act, the burden of proof lies on the party who asserts; thus, having accused the Claimant of failing to bill a procedure, the Respondent was obligated to prove the allegation but did not discharge this burden. They presented no evidence to support this allegation and the Claimant was suspended despite asserting he was off duty on 3rd April 2022 when he is accused of wrong billing. The suspension was prolonged until he opted to resign. Moreover, the Respondent failed to accord the Claimant the procedural safeguards required under sections 41, 43, and 45(2) of the Employment Act, including the right to be accompanied by a witness of his choice during the disciplinary hearing and the obligation to demonstrate valid and fair reasons for termination. At the resignation, the Claimant gave his reasons for resigning clearly demonstrating it was not a voluntary resignation. 40.The conditions that justify constructive dismissal as set out in the case of COCA COLA EAST & CENTRAL AFRICA LIMITED -VS- MARIA KAGAI LIGAGA are of support in this case. According to the above case, the employer’s conduct indeed should amount to repudiatory and fundamental breach of contract. It should have a clear causal link to the termination of the employment. In this case it is clear the Claimant was forced to resign due to unfavourable working conditions. 41.Having carefully considered the pleadings, the evidence, the submissions of the parties and the applicable law, the court holds that the Claimant’s resignation was not voluntary and it amounted to constructive dismissal. Judgment is entered in his favour. 42.For reliefs sought, the court awards the following:a.One month’s salary in lieu of notice Kshs.100,000/=.b.The court will decline to award the unpaid house allowance as Claimant’s salary was consolidated.c.Withheld provident fund contributions Kshs.460,000/= is granted and if it was managed by an Independent Fund, the Respondent will facilitate the payment.d.5 months equivalent of monthly salary being compensation for constructive dismissal to be calculated as follows: 100,000 X 5= 500,000/=.e.Leave days for the last year as it appears he applied for leave but was not granted Kshs.161,538/= 43.The Claimant will have the costs of the suit. 44.Interest will accrue at 14% per annum from the date of delivery of judgment till full payment.Total award is – Kshs.1,221,538/=.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 10TH DAY OF JULY, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.