Mutimba v Nandenu & 2 others (Cause E003 of 2026) [2026] KEMC 684 (KLR) (23 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **ELRC CAUSE NO. E003 OF 2026** **ADAM MUKOYA MUTIMBA………………………………………………………CLAIMANT** **VERSUS** **LEONARD JUMA NANDENU & 2 OTHERS…………………………………RESPONDENTS** **JUDGMENT** 1. The Claimant instituted this cause through a Statement of Claim dated 24th November 2025 praying for judgment against the Respondent for: 2. *Kshs. 533,730/=* 3. *Interest from the date of judgment till payment in full* 4. *Reinstatement* 5. *Costs of this suit* 6. *Any other just and expeditious relief this Honourable Court deems fit to grant* 7. The background of this cause is that the Claimant was employed by the Respondent on 03rd February 2023 as a Clinical Officer under a written contract of service, only for the Respondent to summarily terminate the Claimant’s employment sometime in December 2023 without following due process, hence this cause. 8. The Claimant further averred that, arising from his summary dismissal, he was entitled to the acknowledged salary arrears of Kshs. 75,949/=, one month’s salary of Kshs. 30,257/= in lieu of notice, unpaid nine months' housing allowance of Kshs. 45,000/=, unremitted, deducted NSSF contributions of Kshs. 19,440/=, a Certificate of Service, and statutory compensation for unlawful termination at Kshs. 363,084/=, and reinstatement. 9. The Respondent entered appearance and filed a Statement of Defence dated 02nd February 2026 admitting owing the Claimant salary arrears of Kshs. 75,949/=. The Respondent further averred that the Claimant was not summarily dismissed as pleaded in the Statement of Claim but voluntarily left employment after the Claimant’s staff’s strike over salary arrears. 10. It was also averred by the Respondent that they remitted all the Claimant’s deducted NSSF contributions during the period the Claimant was in their employment. They added that they had not refused to issue the Claimant with a Certificate of Service, provided the Claimant formally resigns from employment or requests the same. 11. In the circumstances, the Respondent urged this court to dismiss this cause with costs. 12. The Claimant filed a Reply to the Statement of Defence dated 16th March 2026, reiterating his averments in the Statement of Claim herein. He urged this court to dismiss the Respondent’s Statement of Defence and enter judgment against the Respondent as prayed in the Statement of Claim herein. 13. The divergent positions taken by the Claimant and the Respondent on the circumstances under which the cause of action herein arose prompted this court to set down this matter for hearing for the Claimant and the Respondent to prove the averments in their respective pleadings on a balance of probabilities. 14. On 23rd April 2026, the parties herein elected to have this cause determined by way of documentary evidence on record per Rule 59 of the Employment and Labour Relations Court (Procedure) Rules. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the pleadings, the documentary evidence, as well as the written submissions on record. It is this court’s considered view that the issues for determination are: (a)Whether the Claimant voluntarily left the Respondent’s employment (b) Whether the Claimant was summarily dismissed by the Respondent (c) What are the reliefs available to the Claimant **Whether the Claimant voluntarily left the Respondent’s employment** 1. The Claimant’s evidence was that he reported back to work sometime in December 2023 after the conclusion of the Respondent’s staff’s strike, only for the Respondent’s administrator one Hyline Saisi, to orally dismiss him summarily. He termed his alleged oral dismissal as unfair dismissal within the meaning of section 45 of the Act. 2. On the other hand, the Respondent took the position that the Claimant did not report back to work after their employee’s strike in December 2023. 3. The burden of proof is explained under section 107(1) and (2) of the Evidence Act to wit:- *‘’107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.’’* 1. The Employment Act under section 47 (5) sets out the burden of proof in employment claims as follows:- *‘’47(5) For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.’’* 1. Guided by the authorities above, this court proceeds to determine whether the parties herein proved on a balance of probabilities their averments on whether or not the Claimant abandoned his employment. 2. The evidence on record regarding this issue is largely the Claimant’s word against the Respondent’s word. 3. The Claimant did not lead any evidence other than his witness statement to prove on a balance of probabilities that he reported to work after the Claimant’s employees’ strike, only for him to be turned away by the Claimant’s administrator. The evidence the Claimant needed to corroborate his assertion that he was turned away from work when he reported after the Claimant’s staff’s strike included the Respondent’s employees’ attendance register or the employees’ records an employer is obligated to maintain under sections 78 and 79 of the Employment Act, or even his fellow employees’ witness statements. 4. One may be tempted to argue that since the records the Claimant would have used to prove that he did not desert duty are in the Respondent’s custody, an adverse inference ought to be drawn against the Respondent for failing to produce such documents to dislodge the Claimant’s case that their administrator turned him away when he reported back to work after the strike. That argument cannot hold since nothing prevented the Claimant from taking out a Notice to Produce requiring the Respondent to produce before this court all documents in their possession which could help the Claimant prove his cause to the required standards. This legal position finds support from **Casmir Nyakundi Nyaberi v Mwakikar Agencies Limited (2016) eKLR,** where Ndolo, J observed: - *‘’ 11. This Court is fully aware that it is the responsibility of an employer to document the employment relationship, and in certain respects, the burden of proving or disproving a term of employment shifts to the employer. This does not, however, release the Claimant from the burden of proving their case. Even where an employment contract is oral in nature, the Claimant must still adduce some evidence whether documentary or viva voce to corroborate their word. More importantly, where an employee believes that the employer has in its possession some documents that would support the case of the employee, that employee is obligated to serve a production notice.‘’* 1. Turning to the other side of the coin of whether the Respondent proved on a balance of probabilities that the Claimant deserted duty, this court notes that other than the Respondent’s CEO’s witness statement, the Respondent also failed to place before this court any other evidence to corroborate the averment in their Statement of Defence herein that the Claimant deserted duty to be deemed to have voluntarily resigned. 2. The upshot of the above is that the evidence on record is barely adequate for this court to make a finding whether or not the Claimant voluntarily left employment through desertion of duty. **Whether the Claimant was unfairly and unlawfully terminated** 1. The Claimant submitted that the admission by the Respondent that they owed the Claimant three months' salary arrears of Kshs. 75,949/= amounted to constructive dismissal, which is deemed to amount to unfair dismissal in this jurisdiction. 2. It is common ground that the Respondent owes the Claimant three months' salary arrears of Kshs. 75,949/=. This begs the question whether an employer owing an employee salary arrears constitutes constructive dismissal. 3. The Black’s Law Dictionary (10th Edition) defines constructive dismissal as follows*:-* *“An employer’s creation of working conditions that leave a particular employee or a group of employees little or no choice but to resign, as by fundamentally changing the working conditions or terms of employment; an employer’s course of action that, being detrimental to an employee, leaves the employee no option but to quit.”* 1. Constructive dismissal was also defined by the Court of Appeal in **Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga (2015) eKLR**, thus:- *“Constructive dismissal occurs where an employee terminates the contract under which he is employed, (with or without notice) in circumstances in which he is entitled to terminate it without notice, by reason of the employer’s conduct. The employer’s behaviour in either case must be shown to be heinous, so intolerable that it made it considerably difficult for the employee to continue working. The employee initiates the termination believing himself to have been fired. The employee needs to show that the employer, without reasonable or proper cause, conducted himself in a manner likely to destroy or seriously damage the employment relationship. Resignation is regarded as constructive dismissal if the employer’s conduct is a significant breach of the contract of employment and that the conduct shows that the employer is no longer interested in being bound by the terms of the contract. The employee’s resignation is therefore treated as an actual dismissal by the employer, and the employee may claim compensation for unfair termination.”* 1. This court has had the benefit of going through the authorities above to appreciate what constructive dismissal constitutes. An employer’s conduct of failing to pay an employee’s salary for three months in full as agreed under the contract of employment is without doubt heinous and intolerable conduct on the part of the employer, which makes it hard for an employee to continue working for the employer. To this end, this court finds refuge in **Abonyo v Finacess Limited (Cause E810 of 2023) [2026] KEELRC 31 (KLR),** where Nzei, J rendered himself thus: *“15.Failure, and indeed a continuous failure by an employer to pay salary, either as agreed in the contract of employment or at all, is a clear demonstration by the employer that he is not willing to be bound by the terms of the contract. It amounts to a significant breach of the contract, one which goes to the foundation of the contract of employment as salary is paid in consideration of contractual services rendered by an employee.* *16.The Claimant in the present case worked and performed her contractual duties for six (6) months without payment of her salary, until 23rd November, 2022 when she issued a three (3) months’ resignation notice as per her contract of employment. She is shown to have worked/served during the three months’ notice period; and her evidence on record demonstrates that she worked for a total of nine (9) months without a salary.* *17.Under the foregoing circumstances, the Claimant was entitled to terminate the contract of employment by way of resignation, with or without notice, with the resignation being deemed as an unfair dismissal by the Respondent. I return a finding that the Claimant was constructively dismissed by the Respondent, and that the dismissal amounted to an unfair termination of employment. I so declare.”(Emphasis added)* 1. It is against this backdrop that this court holds that the Claimant’s constructive dismissal amounted to unfair and unlawful termination of the Claimant’s employment by the Respondent per section 45 of the Employment Act. **What remedies are available to the Claimant** 1. This court proceeds to determine whether the Claimant is entitled to the reliefs set out in paragraph 7 of his Statement of Claim. 2. *Salary arrears of Kshs. 75,949/=* 3. The Claimant pleaded for salary arrears of Kshs. 75,949/=. The Respondent admitted owing the Claimant as much. In the circumstances, this court awards the Claimant salary arrears of Kshs. 75,949/=. 4. *Housing Allowance* 5. The Claimant seeks nine months' housing allowance arrears of Kshs. 45,000/= by placing reliance on Rule 11 of the second schedule of the Employment (General) Rules which provides that: *An employer has a duty to pay an employee housing allowance or provide an employee with a house or pay a wage which is inclusive of house allowance (Emphasis added)* 1. It is abundantly clear from the rule above that an employer is obligated to pay house allowance to his employee where he has not provided the employee with a house or where the salary the employer pays the employee is not inclusive of house allowance. 2. The said rule should also be read together with section 31 (2) of the Employment Act which is express that an employer is not obligated to provide a house or house allowance to their employee where an employee’s contract of service contains a provision which consolidates as part of the basic wage or salary of the employee, an element intended to be used by the employee as rent or which is otherwise intended to enable the employee to provide himself with housing accommodation. 3. A reading of clause 5 of the Claimant’s contract of employment dated 03rd February 2023 shows that the Claimant’s consolidated gross salary per month was Kshs. 30,257/=. A consolidated salary is usually inclusive of the basic salary and other allowances, including housing allowance. 4. The Claimant did not place before this court his pay slips for the nine-month period he is seeking housing allowance arrears for this court to satisfy itself whether his consolidated gross salary of Kshs. 30,257/= was not inclusive of housing allowance. In the absence of the said pay slips, the Claimant’s claim for housing allowance arrears cannot be sustained as was held by Abuodha, J in **Charity Wambui Muriuki v M/s Total Security Surveillance Limited [2017] KEELRC 898 (KLR),** where the learned judge rendered himself thus: *“10. Further whereas the claimant claimed her salary did not include housing allowance, she did not produce any of her pay slips to show her pay did not include housing allowance. Clause 6 of the contract of employment provided that the claimant was entitled to a consolidated salary payable in arrears at the end of every month. A consolidated salary includes basic pay and allowances payable to an employee and housing allowance is usually one of them. It was therefore incumbent upon the claimant to demonstrate by production of her payslip that housing allowance was not one of the allowances paid in the consolidated salary.”* 1. *NSSF Contributions* 2. The Claimant did not place before this court his NSSF account statement for the period his was employed by the Respondent. In the absence of the said account statement, the Claimant’s claim for the alleged deducted but not remitted Kshs. 19,440/= NSSF contributions lacks the limbs to stand on in law. Consequently, the same is dismissed for want of proof. 3. *Certificate of Service* 4. The Claimant’s claim for a Certificate of Service is granted by dint of section 45 of the Employment Act which gives the Employer the statutory duty of issuing a Certificate of Service to its employee regardless of the circumstances of termination of employment. 5. *Notice Pay* 6. This court has already made a finding that the Claimant’s constructive dismissal was unfair termination. Section 49 (1) (a) of the Employment Act provides that where an employee is unfairly terminated, the court may award such an employee the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under the Employment Act or his contract of service. 7. Clause 9(a) of the Claimant’s Contract of Employment herein that the Claimant’s employment could be terminated by the Respondent by the Respondent giving a one month notice or by paying the Claimant his one-month salary of Kshs. 30,257/= in lieu of notice. 8. The foregoing inclines this court to award the Claimant Kshs. 30,257/= under this head. *(f)Statutory Compensation for Unlawful Termination* 1. Section 49 (1) (c) of the Employment Act grants this court the discretion to award the Claimant the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal in instances like in this case where an employee’s employment is unlawful terminated. 2. The Supreme Court in **Kenfreight (EA) Limited v Nguti (Petition 37 of 2018) [2019] KESC 79 (KLR)** gave guidance on how a court ought to exercise its discretion in making an award under this head wit:- *“What then should be the correct award on damages be based on? Having keenly perused the provisions of section 49 of the Employment Act, we have no doubt that once a trial court finds that a termination of employment as wrongful or unfair, it is only left with one question to determine, namely, what is the appropriate remedy? The Act does provide for a number of remedies for unlawful or wrongful termination under section 49 and it is up to the judge to exercise his discretion to determine whether to allow any or all of the remedies provided thereunder. To us, it does not matter how the termination was done, provided the same was challenged in a court of law, and where a court found the same to be unfair or wrongful, section 49 applies…* *41.Guided by the above analysis, we find that once a court has reached a finding that an employer has unlawfully terminated an employee’s employment, the appropriate remedy is the one provided under section 49 of the Employment Act. We also need to clarify that a payment of an award in section 491(a) is different from an award under section 49(1)(b) and (c). Section 49 allows an award to include any or all of the listed remedies provided that a court in making the award, exercises its discretion judiciously and is guided by section 49(4)(m).”* 1. Guided by the authority above and the provisions of section 49 (4) of the Employment Act, as well as considering that the Claimant’s permanent employment (see schedule 1 part 7 of the Claimant’s Contract of Employment), this court awards the Claimant twelve (12) months' gross salary under this head. 2. The award under this head works out as follows: Kshs. 30,257/= X 12 = Kshs. 363,084/=. *(g)Reinstatement* 1. The Claimant pleaded for a remedy of reinstatement. The Respondent, on its part, submitted that the Respondent had since ceased operations, thereby making the Claimant’s reinstatement untenable. 2. Maraga, JA (as he then was) in **Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 403 (KLR)** gave guidance on the factors a court should consider before making an order of reinstatement in the following words: *“ 68.As I have said, in Kenya, reinstatement is one of the remedies provided for in Section 49(3) as read with Section 50 of the Employment Act and Section 12(3)(vii) of the Industrial Court Act that the court can grant. Reinstatement is, however, not an automatic right of an employee. It is discretionary and each case has to be considered on its own merits based on the spirit of fairness and justice in keeping with the objectives of industrial adjudication. In this regard, there are fairly well settled principles to be applied. For instance the traditional common law position is that courts will not force parties in a personal relationship to continue in such relationship against the will of one of them. That will engender friction, which is not healthy for businesses, unless the employment relationship is capable of withstanding friction like where the employer is a large organization in which personal contact between the affected employee and the officer who took action against him will be minimal.* *69. Under the Kenyan Employment Act, the factors to be taken into account when considering reinstatement are enumerated in Section 49(4) of the Employment Act. Those relevant to this appeal include the wishes and expectations of the employee; the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances; the practicability of reinstatement; any compensation paid by the employer; and chances of the employee securing alternative employment…* 1. Applying the principles above to the facts of this case, this court notes that it has already compensated the Claimant for the unfair dismissal. There is also nothing on record to suggest that the Claimant may never get employment elsewhere. Further, it is this court’s view that the acrimonious manner under which the employment relationship between the Claimant and the Respondent was terminated militates against a reinstatement order since peaceful co-existence between the Claimant and the Respondent is not guaranteed if this court grants such an order. 2. In the circumstances, the Claimant’s prayer for reinstatement is declined. **DETERMINATION** 1. The upshot of the above is that judgment is entered against the Respondent as follows:- 2. *Salary arrears of Kshs. 75,949/=* 3. *Notice Pay – Kshs. 30,257/=* 4. *Statutory Compensation for Unlawful Termination - Kshs. 363,084/=* ***Total Award – Kshs. 469,290/=*** 1. The Respondent is ordered to issue the Claimant with a Certificate of Service in accordance with section 51 of the Employment Act. 2. The awarded sums above shall be subject to Pay as You Earn (PAYE) pursuant to Section 49(2) of the Employment Act, and any other applicable statutory deductions. 3. The awarded sums above will earn interest at court rate from the date of this judgment till payment in full. 4. The Claimant will have the costs of this cause. **Judgment read, signed, and delivered in open Court at Bungoma this 23rd day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Naliaka for the Claimant C/A: Mr. Rioba