Ndugu Transport Company Limited v Barrack Musumba Oluoch [2020] KECA 902 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed employers must pay house allowance at 15% of salary unless they can prove they actually housed the employee.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent was entitled to house allowance where the appellant contended it had provided housing which the respondent declined
- 2.Whether the learned judge correctly tabulated the house allowance at 15% of the applicable minimum wage
Key legal issues
#Whether the respondent was entitled to house allowance despite the appellant's claim that housing was provided
The respondent was entitled to house allowance because the appellant neither housed him nor paid a housing allowance itemised in the payslips
Section 31(1) of the Employment Act obliges the employer to provide reasonable housing or pay a sufficient rent sum. The payslips showed no itemised housing allowance. The respondent testified he lived in Kondele Migosi and was not housed because the appellant's houses were too small. The appellant's assertion that the respondent declined the housing was unsupported by any evidence adduced at trial, so the entitlement stood.
Whether the learned judge's tabulation of the house allowance was erroneous
The tabulation was substantially correct; the only error was a reduction of Kshs. 15.34, insufficient to justify interference
The Court took judicial notice of four Regulations of Wages (General) (Amendment) Orders (2010-2013) fixing minimum wages for drivers of heavy commercial vehicles and recalculated house allowance at 15% of the applicable salary across the employment period. The totals differed from the judge's award by only Kshs. 15.34, confirming she had applied the correct formula, so there was no basis for interference.
Whether the appellant could argue grounds not properly set out in the memorandum of appeal
The ambiguous grounds 2 and 4 violated Rule 86(1) and, absent leave under Rule 104(a), the appellant was estopped from arguing matters not specified in the grounds
The Court found grounds 2 and 4 of the memorandum vague, merely asserting that the judge misdirected herself without specifying the evidence or the misdirection, contrary to Rule 86(1). The respondent also pointed out that liability was not among the grounds. Having not sought leave, the appellant was estopped under Rule 104(a) from arguing anything beyond the housing allowance issue.
Legal principles established
#- A first appellate court must re-consider and re-evaluate the evidence and arrive at its own independent conclusions
- A memorandum of appeal must set out the grounds concisely and under distinct heads without argument or narrative, as required by Rule 86(1) of the Court of Appeal Rules
- Without leave of the Court, a party may not at the hearing argue any ground not specified in the memorandum of appeal or notice of cross-appeal (Rule 104(a))
- Under section 31(1) of the Employment Act, an employer must either provide reasonable housing accommodation or pay a sufficient sum as rent in addition to wages; where the employee is not housed, house allowance is payable and may be computed at 15% of the salary
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the principal judgment dismissing the appeal. Found the only live issue was the house allowance award; held the respondent was not housed by the appellant and was therefore entitled to housing allowance at 15% of salary; recalculated the tabulation and found only a Kshs. 15.34 discrepancy; declined to interfere with the ELRC judgment. Observed that Odek, JA had died before delivery of the judgment.
Ultimately, I come to the conclusion that the learned judge did not err in her findings and as such I have no basis for interfering with her judgment.p. 5
- On appeal from
- Employment and Labour Relations Court of Kenya at Kisumu
- ELRC No. 99 of 2015
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules over an appeal from the Employment and Labour Relations Court; judgment given under Rule 32(3) of the Court of Appeal Rules
Relief refused
#The appellant's prayer that the award of house allowance be set aside on the ground that it provided housing to its employees
No evidence was tendered during the trial that the appellant provided or that the respondent refused housing
The appellant's challenge to the tabulation of the house allowance
Recalculation by the Court showed the judge's figures differed by only Kshs. 15.34 and were otherwise correct
Costs
The appeal was dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As the first appellate Court we have an obligation to re-consider and re-evaluate the evidence and come up with independent conclusions
memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.
I find that since the respondent was not housed by the appellant, he was entitled to house allowance.
This appeal has no merit and is accordingly dismissed with costs to the respondent.
Issues in the judgment
#The memorandum of appeal records the first ground as challenging the award of house allowance where housing was provided, but the body of the judgment at one point describes the appeal as being on liability and quantum; the Court resolved the inconsistency by holding that the only clear issue appealed on was the housing allowance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndugu Transport Company Limited v Barrack Musumba Oluoch [2020] KECA 902 (KLR)", Case Analysis (2020). Civil Appeal No. 101 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/902/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.