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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 1448 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Sibo Water & Sanitation Company [2016] KEELRC 1448 (KLR)

Employment and Labour Relations Court
2 February 2016
MOMAUREEN ONYANGO
705 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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A Kenyan employer that suspends an employee must keep paying their salary until reinstatement, even if the worker is being transferred elsewhere.

What this practically means

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Executive summary

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The Claimant union sued on behalf of its member, Godfrey Odhiambo Ochuka (the Grievant), seeking orders restraining SIBO Water and Sanitation Company (the Respondent) and Lake Victoria South Water Services Board (the Interested Party) from suspending, dismissing or disciplining him, and seeking reinstatement and payment of withheld salary. The Grievant, originally employed as a driver by the National Water Conservation and Pipeline Corporation and seconded to the Interested Party and deployed to the Respondent under a Service Provision Agreement, was suspended on 29th December 2009 for allegedly stealing water and being rude to the Managing Director. He was criminally charged but acquitted after the Respondent failed to provide witnesses. On 2nd June 2010 the Respondent handed him over to the Interested Party, which did not redeploy him. On 7th July 2011 the Permanent Secretary transferred him back to the Corporation, whereupon his salary resumed. Both defendants denied the claim. The court found the only live issue was payment of salary withheld during suspension (Kshs. 253,584). Holding that there was no employment link with the Interested Party and that the Respondent had paid and stopped the salary, the court entered judgment for the Claimant against the Respondent for Kshs. 253,584 with interest from filing, awarded costs to the Claimant, and made no order for the Interested Party's costs.

Key legal issues

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01

Liability for salary withheld during suspension

Holding

The Respondent, which employed and paid the Grievant and suspended him, is liable to pay the withheld salary for January 2010 to 7th July 2011

Reasoning

It was not disputed that the Respondent paid the Grievant's salary up to his suspension on 29th December 2009. The handover letter of 2nd June 2010 made no mention of lifting the suspension or paying the withheld salary, and there was no evidence the Interested Party agreed to take back the Grievant. The transfer which restored his salary was made by the Permanent Secretary from the Respondent to the National Water Conservation and Pipeline Corporation. Accordingly liability fell on the Respondent.

p. 2

Legal principles established

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  • The employer who actually paid the employee's salary and effected the suspension is responsible for paying salary withheld during the suspension up to reinstatement, where no employment link exists with any other party

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent in the sum of Kshs. 253,584 with interest from the date of filing suit to date of payment
  2. 2.The Respondent to pay costs to the Claimant
  3. 3.No order for costs of the Interested Party
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (claim filed following an unresolved labour dispute after conciliation); specific provision not stated in the judgment

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, "Kenya Union of Commercial, Food and Allied Workers v Sibo Water & Sanitation Company [2016] KEELRC 1448 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1448/eng@2016-02-02

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