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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 468 (KLR)

Peter Macharia Maina v Nyeri County Public Service Board [2019] KEELRC 468 (KLR)

Employment and Labour Relations Court
6 November 2019
NMNzioki wa Makau
810 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court awarded an employee his acting allowance but refused other allowances because he couldn't prove entitlement.

What this practically means

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Executive summary

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The Claimant, a former law enforcer transitioned from the defunct Nyeri Municipal Council to the Respondent, claimed he was deployed to several capacities (law enforcer, municipal council auditor, legal clerk/court prosecutor, county public service records officer) without formal letters of employment or new contracts. He sought an acting allowance of Kshs. 213,624/-, special duty allowance of Kshs. 180,518.67 and extraneous duty allowance of Kshs. 168,000/-, contending he worked extra duty without pay and was entitled to extra pay in lieu of promotion under a CBA dated 18th February 2013. The Respondent denied the Claimant served in the alleged departments, asserting he remained a law enforcement officer helping with preparation of court cases, and urged dismissal with costs. The matter was determined on documents under Rule 21 of the Court's Rules. The court found the correspondence confirmed the Claimant served in the positions indicated, though as a prosecutor rather than counsel, but he failed to prove he was unpaid for the extra duties alleged. Only the letter of 25th April 2015 acknowledging service as records management officer from November 2014 to 24th April 2015 found traction, entitling him to the acting allowance. The extraneous duty allowance was refused as a discretionary allowance on hold for all employees, which the court could not selectively grant. Judgment was entered for the Claimant for Kshs. 213,624/-, with costs to scale and interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Whether the Claimant proved he was redeployed and entitled to extra pay

Holding

Only the acting allowance for the records management officer role was proved; the special duty and extraneous duty allowances were not

Reasoning

The correspondence produced confirmed the Claimant served in the positions he indicated, including as a prosecutor rather than legal counsel. The letter of 25th April 2015 acknowledged he acted as records management officer from November 2014 to 24th April 2015, entitling him to acting allowance for that period. He failed to prove he was unpaid for other extra duties.

p. 2
02

Entitlement to extraneous duty allowance

Holding

Refused because the allowance was discretionary and on hold for all employees

Reasoning

The Respondent had placed payment of extraneous duty allowances on hold for its staff. Since the allowance was discretionary, the court could not order it for the Claimant where it was unavailable to other employees. The court noted the transitional failures affecting staff absorbed from defunct municipal councils.

p. 2

Legal principles established

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  • An employer's statutory duty to keep records does not absolve an employee from discharging the burden of proving their claim
  • A discretionary allowance withheld across the workforce cannot be granted by the court to one employee

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for Kshs. 213,624/- being acting allowance
  2. 2.Costs of the suit to scale
  3. 3.Interest on Kshs. 213,624/- at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Evidence ActSections 107(1) and 109
  • Employment ActSection 90
  • Employment and Labour Relations Court (Procedure) RulesRule 21

Cases cited (1)

  • Patrick Lumumba v Prime Fuels (K) Limited
    [2018] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (claim for employment allowances determined under the Rules of the Court)

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, "Peter Macharia Maina v Nyeri County Public Service Board [2019] KEELRC 468 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/468/eng@2019-11-06

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