Dorcas Jepkorir Kiplagat v County Secretary – Head of County Public Servie of Uasin Gishu & 3 others [2018] KEELRC 2571 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Employment status of the claimant following the Transitional Authority interim deployment
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
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.
Whether there was an unlawful redundancy
No redundancy occurred; the employment did not cease, so section 40 of the Employment Act was not engaged
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.
Whether stoppage of salary and the disciplinary process amounted to unfair labour practice
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
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.
Whether the claimant was subjected to servitude
No violation of Article 30 established
The court found the deployment lawful and the employment ongoing; the grievances about unpaid allowances and leave did not establish servitude or forced labour.
Annual leave entitlement
The claimant is entitled to her annual leave, to be allocated administratively or paid in lieu within 30 days
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.
Legal principles established
#- 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
#- 1.The due annual leave should be addressed as set out in the judgment in thirty (30) days
- 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.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.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.Mention in 45 days to confirm compliance
- 6.The claimant is awarded costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Constitution and Employment Act, 2007 (Article 41 fair labour practices)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shadrack Mutia Muiu v National Police Service Commission & 2 others [2020] KEELRC 758 (KLR)[2020] KEELRC 758 (KLR)2 Jul 2020
Cite this brief
#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.