Paul Ekwom Nabuin v Turkana County Government & Josphat K. Nanok Governor Turkana County [2019] KEELRC 2611 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Entitlement to salaries after resignation
Salaries due only up to the effective date of resignation, end of December 2016; awarded at ksh.328,125.00
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.
Accumulated leave allowance
Awarded at ksh.1,968,750.00 for 180 days as claimed
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.
Entitlement to gratuity
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
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.
Damages for breach and rights violation
Refused; resignation and delayed terminal dues did not establish violation of fair labour practices
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.
Legal principles established
#- 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
#- 1.Unpaid salary of ksh.328,125.00
- 2.Accumulated leave allowance for 180 days of ksh.1,968,750.00
- 3.Unpaid gratuity of Ksh.3,661,875.00
- 4.Interest at court rates on items (a) and (c)
- 5.Costs of the suit
- 6.Judgment entered jointly and severally against the respondents
- Jurisdiction invoked
- Employment and labour relations dispute under Article 162(2) of the Constitution (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Francis Kimani Kinuthia v Flamingo Hill Camp Limited [2019] KEELRC 1049 (KLR)[2019] KEELRC 1049 (KLR)7 Mar 2019applied
Cite this brief
#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.