For more than three decades, Samuel Yida Kingiri worked as a driver for Surtech Limited. Then his pay stopped.
What followed became a legal dispute over a deceptively simple question: when an employee stops turning up for work after going without wages, has the worker abandoned the job, or has the employer already broken the employment relationship?
The Employment and Labour Relations Court has now answered that question in a case that could complicate how employers handle workers who stop reporting after prolonged salary arrears.
The court found that Surtech’s failure to pay Kingiri’s salary amounted to a fundamental breach of his employment contract and resulted in constructive dismissal. It overturned the earlier decision against him and awarded Ksh636,290 in compensation, Ksh63,629 in notice pay, a certificate of service and costs.
The judgment, delivered on August 31, 2026, is in Kingiri v Surtech Ltd & another, Appeal E030 of 2025, [2026] KEELRC 2440 (KLR).
The dispute behind the absence
Kingiri’s employment with Surtech dated back to 1988. His case was that the company stopped paying his salary from September 2021.
Surtech gave a different account. The company maintained that Kingiri had been paid through November 2021 and said his failure to report was connected to reduced work during the Covid-19 period. According to the employer’s position, workers had agreed to remain away temporarily until business conditions improved.
The disagreement eventually turned on what legal significance should be attached to Kingiri’s absence.
The lower court accepted the employer’s position that he had stopped reporting and treated the conduct as abscondment. It found no basis for the claim that the employment had been terminated.
Kingiri appealed.
The employment court approached the dispute from a different direction: before deciding what his absence meant, it examined the employer’s failure to pay him.
When wages disappear
Justice M. Mbarũ found that Surtech had admitted that Kingiri was not paid after November 2021.
That admission became critical.
The court held that failure to pay an employee’s due salary was not a minor breach that could simply be separated from the worker’s subsequent conduct.
“Where the employer fails to pay the due salary to the employee,” the judge said, “there is a fundamental breach of the employment contract.”
The court drew on earlier decisions dealing with prolonged non-payment of wages and constructive dismissal.
It cited a 2019 Court of Appeal decision in which prolonged failure to pay salaries was linked to “inhuman and degrading circumstances”.
The court also referred to a 2026 decision in which non-payment of salary was recognised as capable of causing distress and indignity.
Then came the line that gives the judgment its unusual force.
“Without a salary, the employee has no reason to report to work,” the judge said.
The statement was made in the context of the court’s finding on constructive dismissal—not as a general rule allowing workers to ignore their contractual duties whenever a payment is late.
The employer cannot simply wait
The judgment also dealt with the employer’s argument that Kingiri had simply stopped attending work.
The court found that an employer alleging persistent unauthorised absence has obligations of its own. It said the employer should summon the employee and, where necessary, report persistent absence to a labour officer.
Surtech, the court found, had not taken those steps.
“The duty to terminate the employment relationship where the employee is alleged to be absent without authority rests on the employer,” the judgment states.
That finding is significant because it turns the usual desertion argument on its head.
Instead of asking only whether a worker failed to report, the court considered whether the employer had properly dealt with the employment relationship after the absence arose—and whether its own failure to pay had fundamentally altered that relationship.
The court ultimately concluded that the non-payment was unjustified and amounted to a fundamental breach.
What the ruling means
The decision does not establish a simple legal formula of “no pay, no work”.
A worker cannot necessarily stop attending after one delayed salary and assume the court will automatically find constructive dismissal.
Kingiri’s case concerned prolonged non-payment and the particular circumstances surrounding his employment. The court also considered the employer’s response, or lack of it, after he stopped reporting.
But the judgment sends a clear warning to employers: unpaid wages can become central to a dispute over an employee’s alleged desertion.
In Kingiri’s case, the court found that the employer’s breach justified a finding of constructive unfair dismissal.
The court awarded him compensation equivalent to 10 months’ gross salary, calculated at Ksh63,629 a month, giving Ksh636,290. It also awarded one month’s salary instead of notice, Ksh63,629.
Kingiri had worked for Surtech for more than 33 years, and the judgment noted that there was no record of poor performance before the employment relationship ended.
The case therefore leaves employers with a question that may be more important than whether a worker turned up on a particular morning: what happened before the worker stopped coming?
Where wages have been withheld for a prolonged period, the court has made clear that the answer may determine whether an employee’s absence is viewed as desertion—or as the consequence of a fundamental breach by the employer.
