https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2312

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC CAUSE NO. E1075 OF 2024** **ANA NIKOLIC………………………………….....………………CLAIMANT** **VERSUS** **CHRISTINE LEWIS ALIAS CHRISTINE MUTURI AND CHRISTINE WANAMI T/A HEALTHCARE CONSULTANTS…….1ST RESPONDENT** **WESTWICK COLLEGE OF HEALTH SICENCES T/A HEALTHLOGIQ ACCREDATION, EXAMINERS & HEALTHCARE CONSULTANTS.................................................................2ND RESPONDENT** **JUDGMENT** **Background** 1. The Claimant has sued the Respondents alleging that they employed her with effect from 1st July 2024 to manage their activities but did not remunerate her. She alleges that the Respondents tried to pressure her to sign an instrument to suggest that she had been paid her salary for the period she was in their service when this was not true. 2. The Claimant further contends that she learned that the Respondents’ Chief Executive Officer (CEO) had been implicated in activities which could potentially damage her (the Claimant’s) reputation. She avers that the CEO was charged in court because of these activities. 3. The Claimant also avers that the Respondents were unwilling to issue her with a formal contract evincing their engagement. She contends that they (the Respondents) tried to force her to sign a contract whose terms were not in consonance with what the parties had agreed on. 4. The Claimant avers that as a result of these matters, she felt that the work environment was not conducive. She contends that the Respondents’ actions amounted to a violation of her right to fair labour practice. As a consequence, she asserts that she was forced to resign from employment with effect from 16th August 2024. Thus, she contends that her contract of service was constructively terminated. 5. The Claimant thus prays for:- 6. A declaration that her contract was unfairly terminated through constructive dismissal from employment. 7. Compensation for unfair termination of her contract of service. 8. Payment of Ksh. 583,333.33 as salary arrears. 9. General damages for breach of her right to fair labour practices under article 41 of *the Constitution*. 10. General damages for mental distress. 11. Costs of the case. 12. The evidence on record shows that the Respondents were served with Summons to Enter Appearance. Despite this, they did not enter appearance. As a result, the suit proceeded to trial as an undefended cause. **Analysis and Determination** 1. The Claimant testified in court on 16th April 2026. She adopted her witness statement as her evidence in chief and tendered the documents in the list and bundle of documents dated 10th December 2024 as her exhibits. 2. From the letter dated 11th June 2024, it is apparent that one Christine Lewis offered the Claimant employment at HealthlogiQ Accreditation Examiners & Healthcare Consultants. In the letter, Christine Lewis described herself as the CEO of the aforesaid organization. 3. According to the letter, the employment relationship between the parties was to commence on 1st July 2024. It is also apparent from the letter that the Claimant’s monthly salary was to be Ksh. 350,000.00. 4. The Claimant contends that she accepted the offer for employment and commenced work pending the parties signing a formal contract of service. However, she asserts that the Respondents were reluctant to finalize the formal contract based on the terms which had been agreed on. 5. The above evidence was not controverted by the Respondents. It undoubtedly points to the fact that the parties had an employment relationship. Consequently, the court finds that there was an employment relationship between the parties. 6. The Claimant avers that the Respondent did not remunerate her for the days she worked. She avers that although the letter of offer indicates that the employment relationship was to commence on 1st July 2024, she begun working in June 2024. 7. The court notes that the Respondents did not provide evidence to confirm that they remunerated the Claimant for the period she was in their service. As a matter of fact, the email correspondence which the Claimant tendered in evidence give credence to her contention that her salary was not paid. The emails document discussions relating to her salary arrears. 8. Having regard to the foregoing, the court is satisfied that the Respondents did not pay the Claimant’s salary. However, the court will only grant her the prayer for salary arrears from 1st July 2024, the date when her contract kicked off. 9. The letter dated 11th June 2024 shows that the Claimant was to be paid salary of Ksh. 350,000.00. She contends that she resigned on 16th August 2024 but claims salary up to 14th August 2024. She gives a figure of Ksh.583,333.33 as comprising the salary arrears. 10. If the figure of Ksh. 350,000 which appears in the Respondents’ letter of 11th June 2024 is indicative of the Claimant’s salary, then her salary arrears for the period between 1st July 2024 and 14th August 2024 is approximately Ksh. 525,000.00. Accordingly, judgment is entered in her favour for Ksh. 525,000.00 to cover arrears. 11. The Claimant has pleaded that her employment contract was constructively terminated. She contends that the Respondents’ actions of, inter alia, refusing to execute a formal contract with her and to pay her salary for the days she was in service rendered it impossible for her to continue in service. As such, she contends that she was forced to resign from employment. 12. The law on constructive dismissal from employment was laid down by the Court of Appeal in the case of ***Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR)***. An employee will be deemed to be constructively dismissed from employment if he/she is forced to resign from service owing to a fundament breach of the terms of the contract of service by the employer. 13. In the instant case, the Respondents failed to remunerate the Claimant from the start to the end of the contract between them. This conduct by the Respondents constituted a fundamental breach of a term of the contract between the parties relating to payment of salary. 14. Speaking to the foregoing in the case of ***Alinur Mohamed Abdi v County Government of Garissa [2021] KEELRC 1238 (KLR)***, the learned Judge expressed herself as follows:- *‘’Payment of salary is fundamental to an employment relationship and withdrawal or failure to pay the same constitutes fundamental breach of an employment contract justifying the termination thereof by an employee. The Claimant herein having been forced to leave his job by the Respondent by failure to pay his salary, I find that he was constructively dismissed.’’* 1. Consequently and on the basis of the evidence on record, the court is satisfied that the Claimant’s resignation from the Respondents’ service was not voluntary but was occasioned by the latter’s breach of the terms of their contract. As such, I find that the Claimant was constructively dismissed from employment. 2. The Claimant having been a victim of constructive dismissal from employment is entitled to compensation for unfair termination of her services. Having regard to the fact that the contract between the parties was terminated hardly two months after it commenced, the court awards the Claimant compensation for unfair termination of her contract which is equivalent to her salary for two months, that is to say Ksh. 700,000.00. 3. The Claimant has prayed for general damages for breach of her constitutional right to fair labour practice. However, the court is of the view that her grievances can be redressed by application of the remedies which are provided under *the Employment Act* without the need of invoking *the Constitution* (see ***Kenya Council of Employment and Immigration Agencies & another v Teachers Service Commission & 4 others [2022] KEELRC 1309 (KLR)***). As a consequence, the prayer for general damages for breach of her constitutional right to fair labour practice is declined. 4. The Claimant has further sought general damages for mental anguish. However, the court declines this request based on the general principle in law that general damages are not available as a remedy for breach of a contract (see ***National Industrial Credit Bank Limited v Aquinas Francis Wasike & another [2015] KECA 337 (KLR)***). 5. The award to the Claimant is subject to the statutory deductions which were applicable at the time the contract of service between the parties was terminated. 6. The court awards the Claimant costs of the suit. 7. The court awards the Claimant interest on the amount awarded at court rates from the date of this judgment. **Summary of Findings and Orders** 1. After evaluating the evidence on record against the applicable law, the court makes the following findings and consequential orders:- 2. The court finds that the parties to the action had an employment relationship. 3. The court finds that the Respondents terminated the aforesaid relationship through constructive dismissal of the Claimant from employment. 4. The court awards the Claimant compensation for unfair termination of her contract in the sum of Ksh. 700,000.00. 5. The court finds that the Respondents did not remunerate the Claimant during the term of her service and awards her Ksh. 525,000.00 as salary arrears. 6. The court declines to award the Claimant general damages for violation of her right to fair labour practice. 7. The court declines to grant the Claimant general damages for mental distress. 8. The award to the Claimant is subject to the statutory deductions that were in force at the time the contract between the parties was terminated. 9. The court awards the Claimant costs of the case. 10. The court awards the Claimant interest on the amount awarded at court rates from the date of this decision. **Dated, signed and delivered on the 30th day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondents **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**