Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedEmployment Cause (Statement of Claim dated 30th June 2014) - number not stated in judgment· [2019] KEELRC 2167 (KLR)

George Mwangi Karuga v Nairobi City Water and Sewerage Company Limited & another [2019] KEELRC 2167 (KLR)

Employment and Labour Relations Court
22 February 2019
MOMaureen Onyango
3,709 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a Kshs.9.7 million claim for back pay because the employee accepted reinstatement terms treating his suspension period as unpaid leave.

What this practically means

#

Executive summary

#
The Claimant, formerly a Revenue Officer with the Nairobi City Council employed on 5th May 1999, was suspended in March 2002 following criminal charges of which he was later acquitted. He was reinstated in 2011 and transferred to the 1st Respondent, Nairobi Water and Sewerage Services, on terms that his suspension period would be treated as unpaid leave. He took early retirement on medical grounds effective 30th August 2013 and sued for Kshs.9,692,207 being accrued salaries, benefits, allowances and service pay for the suspension period, plus costs and interest. The 1st Respondent denied liability, contending the Claimant was never its employee during suspension and that the 2nd Respondent is a separate legal entity. The 2nd Respondent did not file a defence but raised a preliminary objection on limitation, which Nderi J dismissed on 1st April 2016; it later argued estoppel, limitation, and unjust enrichment in submissions. The court framed two issues: its jurisdiction and entitlement to reliefs. It held the jurisdiction issue was res judicata following the earlier ruling. On the merits, it found the Claimant estopped by the reinstatement letter treating the suspension period as unpaid leave, and in any event the claims were statute barred under Section 90 of the Employment Act. The claims for Christmas bonus, golden handshake and salary difference were speculative; service pay was not a term of employment and the Claimant was a pension scheme member. The entire claim was dismissed with each party bearing their own costs.

Key legal issues

#
01

Whether the Court has jurisdiction given the limitation period under Section 90 of the Employment Act

Holding

The Court has jurisdiction because the preliminary objection on limitation was already dismissed by Nderi J on 1st April 2016 and the issue is res judicata.

Reasoning

The 2nd Respondent submitted that the claim, filed on 30th June 2014, was outside the three-year limitation period in Section 90 of the Employment Act. The court noted that this exact issue had been raised in a preliminary objection and dismissed in a ruling delivered by Nderi J on 1st April 2016, directing that the suit proceed to hearing. The respondent could not relitigate the same issue, so the court was properly positioned to hear and determine the claim.

p. 5
02

Whether the claimant is estopped from claiming pay for the suspension period

Holding

Yes. The claimant accepted reinstatement on terms that the suspension period would be treated as unpaid leave and reported to duty on those terms.

Reasoning

The claimant was issued a reinstatement letter dated 9th June 2011 which stated that the period away would be treated as unpaid leave. He reported to duty as directed, and although he made complaints after resuming work, his correspondence did not protest non-payment of dues for the suspension period. He also claimed to have accepted the letter under duress but adduced no proof of duress. He is therefore estopped.

p. 6
03

Whether the claims for Christmas bonus, terminal golden handshake, salary difference and service pay were proved

Holding

No. These heads were speculative and unsupported by evidence; service pay was not a term of the claimant's employment and he was a member of a pension scheme.

Reasoning

The court agreed with the 2nd Respondent that these claims were highly speculative, with no evidence of entitlement tendered. Christmas bonus was paid at the employer's discretion based on exemplary performance and was not a term of service; the claimant rendered no service during suspension. Service pay was introduced by the Employment Act 2007, not in force at suspension, and the claimant was a member of the pension scheme, disqualifying him even under Section 35(6).

p. 6

Legal principles established

#
  • A claimant who accepts reinstatement on conditions in a reinstatement letter, including that the absence period is treated as unpaid leave, is estopped from later claiming pay for that period.
  • Employment remedies must be proportionate to the injury sustained and must not amount to unjust enrichment.
  • Issues of jurisdiction already determined by a prior ruling cannot be raised again before the same court.

Court orders

#
  1. 1.The entire Claim fails and is dismissed
  2. 2.Each party to bear their own costs

Authorities

#

Legislation

  • Employment ActSection 90
  • Employment Act, 2007Section 35(6)
  • Limitation of Actions ActSection 4(1) / Cap 22; Section 39
  • Law of Contract ActSection 3(3)

Cases cited (6)

  • Western Pumps Limited Vs Joseph Wanaina Iraya T/A Queen Chick Inn & H.E Daniel Arap Moi
    Nairobi HCCC (Milimani Commercial Courts) No. 186 of 2006
  • Metra Investments Ltd Vs Gakweli Mohamed Wawakah
    Nairobi Milimani HCCC No. 54 of 2006
  • Nicodemus Marani Vs Timsales Limited
    Industrial Cause No. 204 of 2013
  • Joyce Wanjiku Muchiko & Another Vs Telkom (K) Limited
    Industrial Cause No. 1299 of 2011
  • Pamela K. Butalanyi Vs University Council for the Kenya Polytechnic University College
    (2015) eKLR
  • Farida Ali Kibwana Vs Nairobi City County
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; preliminary objection on limitation (Section 90 Employment Act) previously dismissed by Nderi J on 1st April 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (6)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "George Mwangi Karuga v Nairobi City Water and Sewerage Company Limited & another [2019] KEELRC 2167 (KLR)", Case Analysis (2019). Employment Cause (Statement of Claim dated 30th June 2014) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2167/eng@2019-02-22

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