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Court of AppealPartially AllowedUnknown (Court of Appeal, Kisumu)

Oweno v Municipal Council of Kisumu [1984] KECA 32 (KLR)

Court of Appeal of Kenya
22 June 1984
857 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that government officers seconded to a municipality keep their government employment terms unless the council explicitly directs otherwise.

What this practically means

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Executive summary

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The appellant, seconded from the Ministry of Co-operative Development to the Municipality of Kisumu as Town Treasurer from April 14, 1980, had his secondment terminated on October 14, 1982. He sued in the High Court (Schofield J) over unpaid terminal benefits; most claims were settled, leaving terminal leave and owner-occupied house allowance in dispute. The respondent appealed. Chesoni Ag JA, writing for a unanimous bench, held that the Terms and Conditions of Service for Employees in the Salaried Grades (Ex 10) did not apply to the appellant, since paragraph 1 excluded seconded officers absent a council direction, and none was proved. The 90-day leave accumulation cap therefore did not bind him; leave accrued at Central Government rates of 30 days per annum, totalling 83 days. This produced an arithmetical overpayment on that head, but the court declined to disturb it for want of a cross-appeal. On the house allowance, Ex 10's inapplicability meant no council resolution was required; under Central Government terms he was entitled to 15% of the Kshs 126,000 value of his house for 9 months and 4 days, Kshs 14,378.20. Kneller JA and Nyarangi Ag JA agreed. The court dismissed the appeal against the High Court's finding on paragraph 6(e) and ordered payment of the further sum, with the appellant receiving half the taxed costs given partial success.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Terms and Conditions of Service for Employees in the Salaried Grades (Ex 10) applied to an officer on secondment to a local authority
  2. 2.How the appellant's terminal leave should be calculated and whether the 90-day accumulation cap applied
  3. 3.Whether the appellant was entitled to owner-occupied house allowance without a resolution of the Council

Key legal issues

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01

Application of municipal terms and conditions to a seconded officer

Holding

Paragraph 1 of Ex 10 excludes seconded officers unless the Council directs otherwise; no evidence of such a direction existed.

Reasoning

Paragraph 1 of Ex 10 provides the terms do not apply to officers on contract, secondment, temporary, casual or locum terms except as the Council may direct. The court found no evidence of any such direction. Circular No 28 of 1968 was doubted as covering secondments to local authorities, and even if it did, paragraph 1 of Ex 10 would prevail for local authority secondments.

p. 1
02

Entitlement to owner-occupied house allowance

Holding

The appellant was entitled to the allowance under Central Government terms at 15% of the value of his house for the period of occupation claimed.

Reasoning

Having held Ex 10 inapplicable, no council resolution was needed. The house was valued at Kshs 126,000; the claim was limited to January to October 14, 1982 (9 months and 4 days), yielding Kshs 14,378.20. The court awarded that sum notwithstanding that the claim might have covered the three months' notice period.

p. 2
03

Terminal leave calculation

Holding

Leave accrued at 2.5 days per month under Central Government rates, totalling 83 rounded days, yielding a calculation exceeding the claimed entitlement.

Reasoning

Applying 2.5 days per month over the secondment period produced 82.50 days, rounded to 83. Calculation on the claimed basis produced an overpayment of Kshs 2,163.75 under this head, but as there was no cross-appeal the court did not disturb the result.

p. 2

Legal principles established

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  • The Terms and Conditions of Service in the salaried grades do not apply to officers on secondment to a local authority unless the particular council directs that they apply.
  • A seconded officer's leave accrues at Central Government rates of 30 days per annum (2.5 days per month) where the municipal terms do not apply.
  • Where the municipal terms and conditions do not apply to a seconded officer, no council resolution is required and Central Government terms entitling him to owner-occupied house allowance govern.

Court orders

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  1. 1.Appeal against the High Court finding on paragraph 6(e) of the plaint dismissed
  2. 2.Respondent council ordered to pay the appellant a further sum of Kshs 14,378.20
  3. 3.Appellant awarded half the taxed costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Delivered the leading judgment: the Terms and Conditions (Ex 10) did not apply to the seconded officer absent a council direction, so leave accrued at Central Government rates and the owner-occupied house allowance was payable; proposed orders dismissing the appeal on 6(e) finding and awarding a further Kshs 14,378.20 with half taxed costs.

For the reasons state I would dismiss the appeal against the High Court finding on paragraph 6(e) of the plaint. In the result I would order the respondent council to pay to the appellant a further sum of Kshs 14,378.20.p. 2
majority
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal (not expressly stated in the judgment)

Relief refused

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Interference with the award under head 6(c)

No cross-appeal was filed on that head

p. 2

Correction of the overpayment of Kshs 2,163.75 on the terminal leave calculation

There was no cross-appeal on it

p. 2

Costs

Appellant awarded half the taxed costs, having lost in part and succeeded in part.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the reasons state I would dismiss the appeal against the High Court finding on paragraph 6(e) of the plaint. In the result I would order the respondent council to pay to the appellant a further sum of Kshs 14,378.20.
p. 2Final orders
As the appellant has lost in part and succeeded also in part I would award the appellant half the taxed costs.
p. 2Costs
There was no evidence that the council had directed that these terms and conditions do apply to the appellant.
p. 1Inapplicability of municipal terms to seconded officers
His terminal leave should have been calculated at the Central Government rates of 30 days per annum ie 2 ½ days a month.
p. 2Leave accrual for seconded officers

Issues in the judgment

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minor

Judgment text contains apparent transcription errors, e.g. 'secondment form the Ministry' for 'from the Ministry' and 'under head 6(c)' where context suggests head 6(e); quoted verbatim as they appear.

minor

The case number and the appellant's name are not stated in the judgment text provided.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Oweno v Municipal Council of Kisumu [1984] KECA 32 (KLR)", Case Analysis (1984). Unknown (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/32/eng@1984-06-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.