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ELRCPartially AllowedCause No. 167 of 2017· [2019] KEELRC 2611 (KLR)

Paul Ekwom Nabuin v Turkana County Government & Josphat K. Nanok Governor Turkana County [2019] KEELRC 2611 (KLR)

Employment and Labour Relations Court of Kenya
7 March 2019
2,142 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former Turkana County executive won nearly Ksh.6 million in unpaid dues because the county never proved he failed to hand over office.

What this practically means

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Executive summary

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The claimant, formerly County Executive Committee member for Finance and Planning (and acting CEC for Tourism, Trade and Development) with the 1st respondent, resigned by letter and notice dated 31st November 2016, taking effect at the end of December 2016, in order to run for a political office. He resigned under section 35 of the Employment Act, 2007. He later claimed that the respondents continued to engage him until March 2017, published newspaper notices indicating he was still in office, and refused to pay his dues or issue a Certificate of Service (issued only after filing suit). The respondents, though served and having filed a defence and a witness statement, did not attend the hearing. They alleged the claimant failed to hand over, vitiating gratuity, and that he waived his dues by resigning. The court held that employment terminated at the end of December 2016; the bank signatory letters relied on by the claimant were signed by other authorised signatories and could not prove he continued working; and the misleading newspaper publication could not confer employment benefits. Salaries were awarded only up to December 2016 (ksh.328,125.00). The claim for 180 days' accumulated leave allowance was unchallenged and awarded in full (ksh.1,968,750.00). Gratuity under Legal Notice No. 6518 was awarded at 31% of basic pay for three full years served (Ksh.3,661,875.00), not pro-rated, as the respondents failed to specify or counterclaim for any alleged failure to hand over. Damages for breach and violation of fair labour practices were refused because the claimant had resigned voluntarily. Judgment was entered jointly and severally against the respondents for salary, leave allowance and gratuity, with interest on the salary and gratuity, plus costs of the suit.

Key legal issues

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01

Entitlement to salaries after resignation

Holding

Salaries due only up to the effective date of resignation, end of December 2016; awarded at ksh.328,125.00

Reasoning

The claimant resigned on 31st November 2016 with effect from end of December 2016. The bank signatory letters relied on were signed by other authorised signatories, not the claimant, so they could not confirm that he remained at work. The newspaper notice of 9th March 2017 describing him as still serving was misleading and could not change the terms of employment or create an entitlement to salaries.

p. 3
02

Accumulated leave allowance

Holding

Awarded at ksh.1,968,750.00 for 180 days as claimed

Reasoning

The respondent did not attend the hearing and filed no work records to challenge the claim for 180 days of accumulated leave allowance. In the absence of contrary evidence, the claim was due and was awarded in full as claimed.

p. 3
03

Entitlement to gratuity

Holding

Gratuity payable at 31% of basic pay for the 3 full years served, assessed at Ksh.3,661,875.00, not pro-rated for the extra 6 months

Reasoning

Legal Notice No. 6518 provides for service gratuity at 31% of basic remuneration for County Executive Committee members on fixed term. The respondent's letter of appointment was not produced, so the gazetted terms under the Salaries and Remuneration Commission applied. The alleged failure to hand over was not specified and there was no counterclaim, so gratuity was not vitiated.

p. 3
04

Damages for breach and rights violation

Holding

Refused; resignation and delayed terminal dues did not establish violation of fair labour practices

Reasoning

The claimant resigned voluntarily. Though his terminal dues were not paid in time, forcing him to file suit, that did not amount to a violation of his rights at work or unfair labour practice warranting damages.

p. 3

Legal principles established

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  • A resignation under section 35 of the Employment Act, 2007 terminates employment on the effective date of the notice, and no later publication can change the terms of employment or confer benefits
  • Where an employer alleges failure to hand over to defeat gratuity, the specific failures must be pleaded and proved; general allegations without a counterclaim cannot vitiate entitlement
  • Where an employer fails to produce records of terms of employment, the court falls back on the statutory notice provisions and gazetted terms

Court orders

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  1. 1.Unpaid salary of ksh.328,125.00
  2. 2.Accumulated leave allowance for 180 days of ksh.1,968,750.00
  3. 3.Unpaid gratuity of Ksh.3,661,875.00
  4. 4.Interest at court rates on items (a) and (c)
  5. 5.Costs of the suit
  6. 6.Judgment entered jointly and severally against the respondents

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007sections 10(6) and (7)
  • Legal Notice No. 6518gratuity for state officers in County Government at 31% of basic remuneration, effective 8th August 2017
  • Constitution of Kenyaestablishment of County Governments
Jurisdiction invoked
Employment and labour relations dispute under Article 162(2) of the Constitution (Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Paul Ekwom Nabuin v Turkana County Government & Josphat K. Nanok Governor Turkana County [2019] KEELRC 2611 (KLR)", Case Analysis (2019). Cause No. 167 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2611/eng@2019-03-07

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