The Employment and Labour Relations Court in Nairobi has ordered a law firm associated with Siaya Governor James Orengo to pay a former associate Sh560,000 after finding he was constructively dismissed through unpaid salaries.
In a ruling that clarifies Kenya's labour laws on constructive dismissal, Justice Linnet Ndolo declared that the resignation of advocate Paul Kahangara from J.A.B Orengo Advocates, which was triggered by two months of unpaid wages, amounted to unlawful termination under employment law.
Constructive dismissal occurs when untenable work conditions, like unpaid wages, force an employee's resignation.
Justice Linnet Ndolo.
Photo credit: File | Nation Media Group
“By failing to pay the claimant’s salary as it fell due, the respondent breached a fundamental term of the employment contract and the claimant was entitled to deem himself as constructively discharged,” said Justice Ndolo.
Mr Kahangara joined J.A.B Orengo Advocates in January 2023 as an Associate-Advocate with a monthly salary of Sh80,000. In court documents, he claimed he diligently performed his duties but never received payment, even as colleagues were paid on time.
After repeated unsuccessful attempts to secure his February-March 2023 salaries, Mr Kahangara resigned on April 20, 2023, citing financial strain.
His resignation letter read: "I have been discharging my professional duties faithfully... yet no explanation has been given regarding the persistent failure to pay my salary... I am unable to continue offering my services."
He later sued, claiming constructive dismissal, and sought orders for payment of Sh1.3 million compensation. This claim included Sh240,000 unpaid salaries, Sh960,000 compensation for unlawful termination, Sh80,000 in lieu of notice and Sh36,000 house allowance.
The law firm, in its defense, admitted issuing Mr Kahangara with a letter of appointment but claimed that he "never assumed duty", an argument the judge dismissed as unsupported by evidence.
“If indeed the claimant had failed to report to work, the respondent ought to have issued him with a show cause letter as to why the appointment should not be revoked,” stated Justice Ndolo.
She referenced multiple legal precedents to define constructive dismissal as: "An employer’s conduct so grave that it breaches the employment contract, leaving the employee no real choice but to resign."
The court found that there was a fundamental breach by the employer in withholding salaries and this violated Mr Kahangara’s contract, a "repudiatory breach" justifying his resignation.
The firm failed to provide evidence Mr Kahangara skipped work, as alleged.
The court also flagged procedural failure on the part of the employer, stating that had the employee truly not reported to work, the firm should have formally revoked his appointment —not silently withheld pay.
The compensation award of Sh560,000 comprises a three-month salary of Sh240,000 (February–April 2023), another Sh240,000 (salary arrears for three months), and Sh80,000 (one month’s salary in lieu of notice) plus interest and legal costs.
The judgment reinforces salary withholding as constructive dismissal, with the court holding that non-payment breaches employment contracts, permitting staff to claim wrongful termination.
In relation to the burden of proof, it highlighted that employers must substantiate claims of employee misconduct.
