https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1834

Masiga v Athi River Shalom Community Hospital (Employment and Labour Relations Cause E028 of 2025) [2026] KEELRC 1834 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1834 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Employment and Labour Relations Cause E028 of 2025 HS Wasilwa, J June 26, 2026 Between Valentine Nelima Masiga Claimant and Athi River Shalom Community Hospital Respondent Judgment 1.The Claimant instituted this claim vide a Statement of Claim dated 13th May 2023 and prays for: -a.A declaration that the Claimant’s rights to fair labour practices have been violated by the Respondent.b.Compensation for the breach of the Claimant’s rights to fair labour practices.c.An order directing the Respondent to pay the Claimant the outstanding salary arrears amounting to Kshs. 385,220/-.d.General damages for emotional distress, inconvenience, and undue hardship caused by the unlawful withholding of the Claimant's salary.e.Costs of the suit to the Claimant.f.Any other relief or order that the Honourable Court may deem just and fit to grant in the circumstances. Claimant’s Case 2.The Claimant avers that she was employed by the Respondent as a Medical Officer on 4th March 2024 under a fixed-term contract running until 4th September 2024, with the initial three months constituting a probationary period during which she earned a consolidated monthly salary of Kshs. 130,000, inclusive of housing allowance. Upon successful completion of probation, her salary was to be reviewed to Kshs. 200,000 per month. 3.The Claimant states that she successfully completed her probationary period and effective June 2024, her monthly gross salary was accordingly adjusted to Kshs. 200,000. 4.She further states that upon expiry of the initial contract, the Respondent renewed her employment under a second contract commencing 5th September 2024 and running until 5th March 2025. 5.It is the Claimant's case that beginning August 2024, the Respondent failed to remit her monthly salary, a breach that persisted through September and October 2024. 6.She avers that the Respondent began disbursing her salary in irregular and partial amounts without explanation before ceasing payment altogether. Despite her follow-ups and the Respondent's promise to settle the outstanding dues periodically, only minimal payments were made, which subsequently stopped entirely. 7.The Claimant contends that the sustained non-payment and the resultant financial hardship left her with no option but to resign. She states that she proceeded on unpaid leave in November 2024 and formally tendered her resignation on 8th December 2024. 8.At the time of her resignation, her salaries for August, September, and October 2024 remained unpaid, amounting to Kshs. 390,220. Despite several follow-ups with her superior, the only response was a token payment of Kshs. 5,000, after which all communication ceased. The Claimant accordingly asserts that the outstanding net salary arrears due to her stand at Kshs. 385,220. 9.The Claimant states that both the Constitution and the Employment Act safeguard her entitlement to fair remuneration for services rendered. She asserts that the Respondent's failure to honour the agreed terms of payment constitutes a clear violation of her rights to fair remuneration and reasonable working conditions. She relies on Article 41 of the Constitution, Section 17 of the Employment Act, Article 15 of the African Charter on Human and Peoples' Rights, and Article 7 of the International Covenant on Economic, Social and Cultural Rights. Respondent’s Case 10.It is on record that the Respondent was served with the pleadings herein on 29th October 2025. Notwithstanding such due service, the Respondent neither entered appearance nor filed any pleadings in response to the claim. The Claimant, by an application dated 19th December 2025, moved this Court for an order that the matter proceed unopposed. Upon consideration of the said application, this Court, on 10th April 2026, granted the application and ordered that the matter be heard and determined on an unopposed basis. Evidence in Court 11.The Claimant witness, (CW1) adopted her witness statement dated 13th May 2025 as her evidence in chief and produced her documents dated even date as her exhibit 1-7 respectively. Claimant’s Submissions 12.The Claimant submitted on three issues: whether the Respondent violated the Claimant’s right to fair remuneration and fair labour practices; whether the Claimant has proved entitlement to the outstanding salary arrears claimed; and whether the Claimant is entitled to the reliefs sought in the Statement of Claim. 13.On the first issue, the Claimant submitted that the Respondent's failure and/or refusal to pay her salary for work duly rendered constituted a blatant violation of her constitutional and statutory rights to fair labour practices and fair remuneration enshrined under Article 41(1) and (2) of the Constitution and Section 17 of the Employment Act, which imposes a mandatory obligation upon employers to pay employees all wages earned without unreasonable delay. 14.The Claimant submitted that the evidence before Court clearly demonstrated that she dutifully discharged her obligations as a Medical Officer, and that the Respondent acknowledged the employment relationship through the contracts of employment, salary schedules, and payment records produced in her bundle of documents. Despite this, the Respondent persistently failed to pay her salary for August, September, and October 2024, effectively compelling her to render services without remuneration. She submitted that withholding an employee's earned salary constitutes a fundamental breach of the employment relationship going to the very root of the contract of service. 15.In support, the Claimant cited Abonyo v Finacess Limited [2026] KEELRC 31 (KLR) and submitted that the Court found that the Claimant was constructively dismissed by the Respondent due to non-payment of salary for nine months, which constituted a significant breach of the employment contract under Section 37 of the Employment Act. This conduct made it intolerable for the Claimant to continue working, leading to a declaration of unfair termination. 16.It is the Claimant’s submission that the Respondent’s failure to remit her earned salary, despite repeated demands and acknowledgements thereof, amounted to a clear violation of her constitutional and statutory rights. 17.On the second issue, the Claimant submitted that she has proved, on a balance of probabilities, that the Respondent was indebted to her in the sum of Kshs. 385,220; by producing before Court the contracts of employment, salary schedules and payment records, her demand letter to the Respondent's Chief Financial Officer, an acknowledgment of salary arrears by the Respondent's Accounts/Finance Office dated 20th December 2024, and her resignation letter. 18.She submitted that the acknowledgment of arrears by the Respondent's Finance Office substantially corroborated her claim and effectively constituted an admission by the Respondent. Further, the Respondent neither disputed the authenticity of these documents nor tendered any evidence demonstrating settlement of the arrears, thus, this uncontroverted documentary evidence was sufficient proof on a balance of probabilities. 19.On the reliefs sought, the Claimant submitted that she is entitled to: a declaration that the Respondent violated her constitutional right to fair labour practices and fair remuneration under Article 41 of the Constitution; payment of the outstanding salary arrears of Kshs. 385,220; compensatory damages for the distress, financial hardship, inconvenience, and indignity occasioned by the Respondent's conduct; and costs of the suit, having been compelled to institute proceedings to recover monies lawfully due to her. 20.She submitted that the Respondent's persistent non-payment of wages compelled her to take unpaid leave and ultimately resign, subjecting her to unnecessary hardship and economic prejudice despite her continued rendering of professional medical services. 21.In conclusion, the Claimant urged the Court to find that she had proved her claim on a balance of probabilities and to enter judgment against the Respondent as prayed, together with costs and any other relief the Court may deem fit and just to grant. 22.I have examined all the evidence and submissions of the parties herein. The claimant’s case relates to the salary that was due and owing to her which the respondents did not pay. The respondents failed to defend this claim and the claimant’s case remained uncontroverted. 23.Without any evidence to the contrary, I find the claimant’s case proved and judgment is entered against the respondents for the claimant to the tune of kshs 387.220/- less statutory deductions plus costs and interest at court rates with effect from the date of this judgment. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2026.HELLEN WASILWAJUDGE