Mathew Wambua & 15 others v Cabinet Secretary Ministry of Environment & Forestry & another; Chair Person Salaries & Remuneration Commission (Interested Party) [2019] KEELRC 412 (KLR)
The bottom line
#Kenya's Employment Court ruled that a government employer cannot stop paying an allowance without first notifying and consulting affected employees.
What this practically means
#Executive summary
#Key legal issues
#Whether the stoppage of the Special House Allowance was proved
Established: payslips showed the allowance ceased effective December 2018 without notice or consultation.
The exhibited payslips showed the petitioners received Rental House Allowance, Special House Allowance and Hardship Allowance up to November 2018, and from December 2018 the Special House Allowance disappeared while the others remained unchanged. No evidence showed the petitioners were notified or consulted before the change, contrary to sections 10(5) and 13(1) of the Employment Act.
Whether the withdrawal violated Articles 27(1), 41(1) and 47(1) and (2)
Yes - the adverse decision was taken without fair procedure or written reasons, amounting to discrimination in benefit, unfair labour practice and unfair administrative action.
The withdrawal was an adverse decision affecting the petitioners' terms of service. They were entitled to a fair procedure and written reasons under Article 47 but received none. The failure occasioned financial embarrassment and hardship, and constituted an unfair labour practice under Article 41(1) and a breach of equal benefit of the law under Article 27(1).
Whether the SRC's lack of advice on the allowance justified the respondents' action
No - the SRC's own evidence confirmed it had not advised on the Special House Allowance, so the respondents had no lawful authority to stop payment.
The circulars exhibited dealt with hardship and house allowance generally but not the Special House Allowance. Under Article 259(11), a power exercisable only on advice must await that advice. It could not be that because the SRC had not advised, the allowance ceased automatically; no decision to that effect was exhibited.
Whether a remedy could issue though prayers were not elegantly set out
Yes - Article 159 applies because the petitioners clearly sought a remedy for violation of rights.
The interested party argued no order could issue because none was prayed for. The court held the prayers, though not conventionally arranged at the end of the petition, clearly sought a remedy for the alleged rights violations, and the overriding objective under Article 159 applied.
Legal principles established
#- A change to contractual terms of employment, such as withdrawal of an allowance, requires written notice to and consultation with the employee under sections 10(5) and 13(1) of the Employment Act, 2007.
- Where the SRC has not advised on a particular allowance, there exists no constitutional and lawful basis for a public employer to withhold an accrued right to that allowance.
Court orders
#- 1.Judgment entered for the petitioners against the respondents as the petition is allowed
- 2.A declaration that the purported failure to pay, withholding or withdrawing of the Special House Allowance amounted to violation of the petitioners' rights under Articles 27(1), 41(1) and 47(1) and (2) of the Constitution of Kenya, 2010
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya, 2010 (petition for enforcement of fundamental rights and freedoms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathew Wambua & 15 others v Cabinet Secretary Ministry of Environment & Forestry & another; Chair Person Salaries & Remuneration Commission (Interested Party) [2019] KEELRC 412 (KLR)", Case Analysis (2019). Petition No 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/412/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.