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Court of AppealPartially AllowedCivil Appeal (Memorandum of Appeal dated 15th November 2022)

County Government of Kwale v Kiptalam (Civil Appeal E118 of 2022) [2025] KECA 1310 (KLR)

Court of Appeal of Kenya
18 July 2025
6,036 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled employers can lawfully stop paying staff who skip work without permission or proper leave documentation.

What this practically means

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Executive summary

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This is a first appeal by the County Government of Kwale against the judgment of the Employment and Labour Relations Court at Mombasa (Ongaya, J.) delivered on 29th July 2022, in consolidated Cause No. 95 of 2019 and Cause No. E006 of 2021, in which the respondent, a clinical officer-anaesthetist, challenged his transfer to Samburu sub-County Hospital and the stoppage of his salary after he declined to report to the new station and later absented himself during the COVID-19 pandemic on medical grounds. The trial court found the stoppage unfair, awarded withheld salaries of Kshs.4,536,170 less PAYE, lifted the stoppage, declared the deployment regular, and awarded 50% costs. The Court of Appeal, comprising Kairu, Laibuta and Ngenye-Macharia, JJA, in a single unanimous judgment, framed a sole issue: whether the appellant rightly withheld the respondent's salary. Re-evaluating the evidence as on a retrial, the Court held that the deployment letter required reporting by 21st June 2019; that pending theft investigations were no lawful basis to refuse reporting; that the physician's letter of 10th September 2020 did not amount to express permission to stay away; and that the stoppage complied with Clause 4.4 of the PSC Discipline Manual. Allowing the appeal, the Court set aside the judgment and decree of the ELRC, upheld the withholding of the respondent's salary, and ordered the respondent to bear the costs of the appeal. The decision binds subordinate courts and tribunals on the employer's entitlement to stop salary for unexcused abscondment.

Questions the Court framed

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

  1. 1.Whether the appellant rightly withheld the respondent's salary for the days which he failed to report to work

Key legal issues

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01

Whether the withholding of the respondent's salary was justified

Holding

Yes. The respondent unjustifiably absconded duty for approximately 240 days from 21st June 2019 to 14th February 2020 and again absented himself in August-October 2020 without permission; the physician's letter did not amount to permission to stay away, and salary stoppage was a lawful disciplinary measure under Clause 4.4 of the PSC Discipline Manual.

Reasoning

The deployment letter required reporting by 21st June 2019; the respondent offered no legal basis for refusing to report pending theft investigations. The 10th September 2020 physician's letter only recommended exemption from duty when necessary, not express permission to stay away, and the respondent never pleaded lack of protective gear. The stoppage complied with Clause 4.4 of the Discipline Manual, being effected days beyond the 10-day window.

p. 11
02

Whether the trial court erred in finding constitutional and statutory violations by the appellant

Holding

Yes. The learned Judge's finding of entitlement to withheld salaries on the basis that the deployment letter lacked a reporting timeline was erroneous and based on a misapprehension of the facts, since the letter stated the reporting date as 21st June 2019.

Reasoning

The trial court had itself correctly found that the pending grievance over the alleged theft was no bar to reporting on transfer and that deployment was the employer's prerogative. Having so found, it erred in awarding the withheld salaries. The Court found the respondent unjustifiably absconded, so no violation of the Constitution or Employment Act arose from the stoppage of salary.

p. 9

Legal principles established

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  • On a first appeal, the Court of Appeal is obliged to re-evaluate and re-analyse the evidence afresh and arrive at its own conclusions, the appeal being by way of retrial.
  • An employer is entitled to withhold salary where an employee deliberately absents himself from work without leave or express permission in accordance with the governing policy.
  • An employee has no prerogative to dictate his station of work and must report to the workstation designated by the employer.

Court orders

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  1. 1.The judgment and decree of the Mombasa Employment and Labour Relations Court (Ongaya, J.) in ELRC Cause No. 95 of 2019 as consolidated with Cause No. E006 of 2021 dated and delivered on 29th July 2022 be and is hereby set aside
  2. 2.The withholding of the respondent's salary as tabulated by the appellant is upheld
  3. 3.The respondent shall bear the costs of the appeal

The bench

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

majority
majority
On appeal from
Employment and Labour Relations Court, Mombasa
ELRC Cause No. 95 of 2019 as consolidated with Cause No. E006 of 2021
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (first appeal by way of retrial, section 78 Civil Procedure Act referenced in reasoning)

Relief refused

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Upholding the trial court's award of withheld salaries to the respondent

The respondent unjustifiably absconded from work without proper permission and the employer was entitled to stop his salary

p. 11

Costs

The respondent shall bear the costs of the appeal.

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.

This being a first appeal from a court of first instance, is by way of a retrial. We are obligated to re-evaluate and re-analyse the evidence on record afresh and arrive at our own conclusions.
p. 7Nature of a first appeal
Where an employee deliberately absents himself from work and fails to submit the relevant leave forms or express permission to be away from work in accordance with the governing policy, the employer is entitled to withhold payments
p. 10Employer's right to stop salary for abscondment
It was not the respondent's prerogative to dictate where he would have been designated to work.
p. 9Employer's prerogative on deployment
a. The judgement and decree of the Mombasa Employment and Labour Relations Court (Ongaya, J.) in ELRC Cause No. 95 of 2019 as consolidated with Cause No. E006 OF 2021 dated and delivered on 29th July 2022 be and is hereby set aside. b. Consequently, we hereby uphold the withholding of the respondent's salary as tabulated by the appellant. c. The respondent shall bear the costs of the appeal.
p. 11Final orders / disposition

Issues in the judgment

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minor

The judgment states 'Dissatisfied with the Judgement, the respondent filed this appeal' although the memorandum of appeal dated 15th November 2022 is the appellant's and the appeal is expressly described as by the County Government of Kwale; the passage misnames the appellant as 'the respondent'.

minor

Counsel for the respondent is recorded variously as Mr. Ngoze and Mr. Gonze in the same judgment.

minor

The computation of days absent is given as 240 days where the appellant's submissions had put the period at 250 days from the transfer date.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Kwale v Kiptalam (Civil Appeal E118 of 2022) [2025] KECA 1310 (KLR)", Case Analysis (2025). Civil Appeal (Memorandum of Appeal dated 15th November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1310/eng@2025-07-18

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