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ELRCPartially AllowedCause No. 145 of 2017 (Formerly Cause No. 43 of 2016 – Nakuru)· [2018] KEELRC 2571 (KLR)

Dorcas Jepkorir Kiplagat v County Secretary – Head of County Public Servie of Uasin Gishu & 3 others [2018] KEELRC 2571 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret
12 July 2018
6,807 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan county government was ordered to pay a worker years of withheld salary with interest after stopping her pay without following fair disciplinary procedures.

What this practically means

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Executive summary

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The claimant, a Public Service Commission employee seconded to the Transitional Authority, was deployed as Interim Human Resource/Payroll Manager to the County Government of Uasin Gishu in February 2013 on a temporary basis with a Kshs.30,000 monthly responsibility allowance. She sought declarations that employment existed as Resources/Payroll Manager, that the abolition of that position was unlawful redundancy contrary to section 60 of the County Government Act, orders for reconstitution or competitive filling of the position, damages for servitude and unfair labour practices under Articles 30 and 41, unpaid salaries, responsibility allowances, leave and consequential losses including loan default and CRB listing. The court held that the TA deployment was an interim transitional measure which lapsed; the claimant remained the employee of the 4th respondent and reverted to her substantive Administrative Officer duties, so no redundancy under section 40 of the Employment Act occurred and the court would not interfere with the Board's statutory mandate to create and abolish offices. However, the respondents stopped her salary from May 2015, asserted a suspension for which no record existed, and imposed conditional reinstatement - measures taken without due process, disciplinary rules or hearing, amounting to unfair labour practices. Servitude and constitutional violations were not established. The court ordered payment of all salaries due from May 2015 with increments, interest at commercial rates, allocation or payment in lieu of annual leave within 30 days, mention in 45 days to confirm compliance, and awarded costs to the claimant.

Key legal issues

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01

Employment status of the claimant following the Transitional Authority interim deployment

Holding

The claimant remained the employee of the County Government of Uasin Gishu; the interim HR/Payroll Manager deployment was a temporary transitional measure that lapsed and she reverted to her substantive position as Administrative Officer

Reasoning

The deployment letter of 25 February 2013 specified temporary deployment with salary drawn from the parent ministry and a Kshs.30,000 allowance. The January 2014 TA circular was addressed to third parties, not the claimant, and created no employment relationship. With the TA mandate ended, her employment with the 4th respondent continued uninterrupted.

p. 6
02

Whether there was an unlawful redundancy

Holding

No redundancy occurred; the employment did not cease, so section 40 of the Employment Act was not engaged

Reasoning

The claimant's role did not end; upon appointment of a substantive office holder she reverted to administrative duties and her employment is ongoing. The respondents retain power under the County Government Act to create or abolish offices, and the interim position had simply ceased.

p. 6
03

Whether stoppage of salary and the disciplinary process amounted to unfair labour practice

Holding

Yes. Withholding salary from May 2015 without due process, without disciplinary rules and without records of suspension, breached natural justice and fair labour practices under Article 41 and sections 41 and 44 of the Employment Act

Reasoning

Desertion as gross misconduct under section 44(4) warrants summary dismissal but only after compliance with section 41(2). The employer produced no suspension record, no disciplinary rules under section 12, and took summary action by stopping salary. The claimant's unrebutted evidence that she remained at duty station was accepted.

p. 8
04

Whether the claimant was subjected to servitude

Holding

No violation of Article 30 established

Reasoning

The court found the deployment lawful and the employment ongoing; the grievances about unpaid allowances and leave did not establish servitude or forced labour.

p. 7
05

Annual leave entitlement

Holding

The claimant is entitled to her annual leave, to be allocated administratively or paid in lieu within 30 days

Reasoning

Section 28 of the Employment Act gives every employee the right to annual leave or payment in lieu. The respondent's letter of 9 July 2015 refused to process the leave and no material showed the matter was resolved; no cause was shown by the respondents.

p. 7

Legal principles established

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  • Stoppage of an employee's salary as a response to alleged gross misconduct before due process amounts to an unfair labour practice
  • A seconded or deployed employee remains the employee of the principal employer
  • Reinstatement applies only where employment has been terminated or the employee unfairly dismissed, not to a suspended employee whose employment is ongoing
  • Where an employer fails to keep and produce employment records such as a suspension letter, the court will believe the employee's account

Court orders

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  1. 1.The due annual leave should be addressed as set out in the judgment in thirty (30) days
  2. 2.The claimant shall be paid her full salaries as due and arising from May, 2015 to date noting any increments in rank and years applicable for the position held; such salaries are due and payable immediately and not later than thirty (30) days
  3. 3.The due salaries retained by the respondent from May, 2015 to date shall be paid with interest at commercial rates ongoing and applicable as of this date
  4. 4.As employment of the claimant is on-going, compensation shall not be awarded; the respondents are referred to the provisions of section 46(h) of the Employment Act, 2007
  5. 5.Mention in 45 days to confirm compliance
  6. 6.The claimant is awarded costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 30, 41(1), 41(2)(a) and (b), 176
  • Employment Act, 2007Sections 4, 10, 10(5), 12, 28, 40, 41(2), 43, 44(4), 45, 46(h), 73(2) [as cited]
  • County Government Act, 2012Sections 55, 60, 62, 64, 64(4), 73(2)

Cases cited (7)

  • Abyssinia Iron & Steel Limited v Kenya Engineering Workers Union
    [2016] eKLR
  • Elizabeth Washeke & 62 Others versus Airtel Networks (K) Limited & Another
    [2013] eKLR
  • David Barasa versus British Peace Support Team & Another
  • Public Service Commission versus County Government of Bomet & Others
    Petition No.27 of 2016
  • Severine Luyali versus the Minister Foreign Affair & International Trade & 3 others
    [2014] eKLR
  • Nahashon Cheruiyot Ngeno versus Strengthening of Mathematics & Science Education Project & Another
    [2015] eKLR
  • Kenya County Government Workers Union versus Kisumu County Government & 95 others
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution and Employment Act, 2007 (Article 41 fair labour practices)

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, "Dorcas Jepkorir Kiplagat v County Secretary – Head of County Public Servie of Uasin Gishu & 3 others [2018] KEELRC 2571 (KLR)", Case Analysis (2018). Cause No. 145 of 2017 (Formerly Cause No. 43 of 2016 – Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2571/eng@2018-07-12

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