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ELRCDismissed· [2019] KEELRC 432 (KLR)

Richard Kerama Ratemo v Richard Nyagaka Tongi [2019] KEELRC 432 (KLR)

Employment and Labour Relations Court
4 November 2019
587 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, who stated he was employed as constituency office manager for Nyaribari Chache Constituency from 1st February 2014 on a monthly salary of Kshs.35,100, sued the sitting Member of Parliament, Hon. Richard Nyagaka Tongi, alleging that his employment was summarily terminated in May 2015 without notice, a notice to show cause, or any valid reason. He sought general damages for wrongful dismissal equivalent to the unserved remainder of a five-year contract expiring in September 2017, plus costs. The respondent did not enter appearance or file a defence, and the suit proceeded undefended after substituted service. The court held that although the claimant was employed as a constituency office manager, he did not demonstrate on a balance of probabilities that he was an employee of the respondent personally. Relying on the Parliamentary Service (Constituency Officers) Regulations 2005 as amended in 2011, particularly regulation 4.13(iv), the court found that any award for unfair dismissal of a person engaged by a constituency office is borne by that office and deducted by the Parliamentary Service Commission from the constituency's allocation; the constituency office is a public office, and the Member of Parliament bears no personal liability for its employees' remuneration, terminal benefits or damages. There was also no evidence linking the MP to the summary dismissal. The claim for severance pay raised only in submissions was refused as unpleaded. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the respondent MP was properly sued in his personal capacity for the constituency office employee's dismissal

Holding

No; the constituency office is a public office and any award for unfair dismissal is borne by the constituency office under the Parliamentary Service (Constituency Officers) Regulations 2005 as amended in 2011 (Legal Notice No. 77), so the MP is wrongly sued personally

Reasoning

Regulation 4.13(iv) of the constituency officers regulations provides that any award for unfair dismissal of a person engaged shall be borne by the constituency office and deducted by the Parliamentary Service Commission from that constituency's allocation. The court therefore concluded the office is a public office and the MP carries no personal liability for the employee's remuneration, terminal benefits or damages.

p. 2
02

Whether the claimant proved employment by and dismissal at the hands of the respondent

Holding

No; on a balance of probabilities the claimant did not show he was the respondent's employee, and there was no evidence linking the MP to the summary dismissal

Reasoning

The claimant testified he was blocked from accessing the office by unnamed persons without notice or reason. The court found no evidence that the MP sued had anything to do with the summary dismissal, so the claimant failed to discharge the burden of proving his employment relationship with the respondent and the cause of action against him.

p. 2
03

Whether severance pay/gratuity could be granted

Holding

No; it was not pleaded in the statement of claim and was raised only in submissions

Reasoning

The statement of claim sought only general damages equivalent to the unserved term of the contract plus costs. Since gratuity and/or severance pay was not among the reliefs sought in the statement of claim, the court could not grant it on the basis of written submissions alone.

p. 2

Legal principles established

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  • A Member of Parliament bears no personal liability for remuneration, terminal benefits or damages owed to a constituency office employee; any award for unfair dismissal is borne by the constituency office and deducted by the Parliamentary Service Commission from the constituency allocation

Court orders

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  1. 1.The suit is dismissed with no order as to costs

Authorities

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Legislation

  • County Office Staff Regulations31% gratuity provision (as referred to by claimant)
  • Parliamentary Service (Constituency Officers) Regulations 2005 as amended in 2011 (Legal Notice No. 77)regulation 4.13(iv)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment claim (statute not specified 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, "Richard Kerama Ratemo v Richard Nyagaka Tongi [2019] KEELRC 432 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/432/eng@2019-11-04

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