Wilson Ngaruiya Njoroge & another v Jomo Kenyatta University of Agriculture and Technology [2020] KEELRC 443 (KLR)
The bottom line
#Kenya's Employment Court confirmed that unfair termination compensation is calculated on gross salary—regular fixed allowances included—while variable allowances are excluded, reducing the awards.
What this practically means
#Executive summary
#Key legal issues
#What constitutes gross salary for computing notice pay, compensation for unfair termination and withheld salary
Gross salary comprises basic salary plus regular, fixed allowances payable every month; temporary or performance-dependent allowances such as acting allowance are excluded. The 1st claimant's gross salary was KShs. 79,240 and the 2nd claimant's KShs. 39,320.
Section 49(1)(a) and (c) of the Employment Act base awards on the gross monthly wage or salary. Undisputed pay slips for May–July 2009 showed total monthly earnings. The Court of Appeal in Postal Corporation v Tanui and Leakey v Chemai holds that allowances dependent on actual performance are excluded. All items except the acting allowance (KShs. 880) were regular and fixed, hence includable.
Computation of half pay during suspension (withheld salary)
Half pay during suspension excludes duty-facilitating allowances (travelling, telephone, management support, acting, entertainment); only fixed items (basic salary, house allowance, electricity & water) count. House allowance was in fact paid, so only half basic salary plus electricity & water was withheld; award is capped at the pleaded amount.
Since the claimants performed no duties during suspension, facilitation allowances fall away. The respondent's pay slips showed full house allowance was paid. The pleaded figures of KShs. 77,895 and KShs. 45,350 were admitted and adopted, subject to the rule that the court awards only what is pleaded.
Whether the judgment of 22.3.2019 contained an error apparent on the face of the record justifying review
It was common ground that an error existed as to the salary used in assessing damages; review was justified and the award varied downwards from the figures of KShs. 2,414,745 and KShs. 1,770,899 originally awarded.
Both parties conceded the error apparent on the face of the record regarding the salary figure used by the court in the original judgment. The only live issues were the correct gross salary and the resulting awards, which the court resolved by reference to the undisputed pay slips and applicable case law.
Legal principles established
#- Gross salary is the amount calculated by adding up one's basic salary and allowances before deduction of taxes and other deductions; each case must be examined to identify the nature of the allowances and whether they form part of gross salary.
- Allowances dependent on actual performance of the contract of employment are excluded when calculating damages for unfair or wrongful termination.
Court orders
#- 1.Application for review allowed and the award of damages in the judgment of 22.3.2019 varied: 1st Claimant – Notice pay KShs. 79,240.00, Withheld salary KShs. 77,895.00, 12 Months' Compensation KShs. 950,880.00, Total KShs. 1,108,015.00
- 2.2nd Claimant – Notice pay KShs. 39,320.00, Withheld salary KShs. 45,350.00, 12 Months' Compensation KShs. 471,840.00, Total KShs. 556,510.00
- 3.Awards subject to statutory deductions but in addition to costs of the suit plus interest at court rates from the date of the said judgment
- 4.Each party to bear own costs of the instant Application
- Jurisdiction invoked
- Sections 49 and 50 of the Employment Act and the Court's power of review over its own judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Ngaruiya Njoroge & another v Jomo Kenyatta University of Agriculture and Technology [2020] KEELRC 443 (KLR)", Case Analysis (2020). Application dated 21.11.2019 (arising from judgment of 22.3.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/443/eng@2020-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.