Joseph Mungai Keriko v Jomo Kenyatta University of Agriculture and Technology & 2 others [2020] KEELRC 892 (KLR)
The bottom line
#JKUAT cannot cut a professor's salary when he returns from leave of absence; his employment never ended, so inferior terms were unlawful and arrears are payable.
What this practically means
#Executive summary
#Key legal issues
#Whether the salary reduction on resumption of duty was unlawful
The reduction was unlawful; the claimant was entitled to his pre-release basic salary, house allowance and commuter allowance plus annual increments and CBA increases
The claimant was granted leave of absence without pay, so his employment never terminated. The respondents failed to explain why his salary on resumption fell below what he earned before release. The 14th May 2015 circular relied on by the respondents post-dated the dispute and did not authorise inferior terms. Only administrative-function allowances could be withdrawn.
Whether the allowance and gratuity claims were time barred
Yes, the claims for Kshs.1,782,000 allowances and Kshs.380,000 gratuity arising 2009-2012 were time barred under Section 90 of the Employment Act
Section 90 requires actions arising from a contract of service to be instituted within three years, or within twelve months for continuing injuries. These claims accrued while the claimant was Principal of Nairobi Westlands Campus (2009-2012) and were of a specific, non-recurrent nature with a fixed payable period, so they were not continuing injuries.
Whether reduction of salary constituted discrimination and constructive dismissal
The court found the salary reduction unlawful and degrading but did not sustain a finding of constructive dismissal since employment subsisted
Because the claimant remained an employee on leave of absence and resumed duty, the employment relationship was intact; the court addressed the reduction as unlawful rather than as constructive dismissal, while noting the degrading aspect of reducing pensionable basic salary and house allowance.
Legal principles established
#- An employee on leave of absence without pay does not have a terminated employment and cannot resume duty on inferior terms
- Only allowances tied to administrative functions may be withdrawn from an employee reverting to a substantive position
- Reducing basic salary and house allowance that underpin pension contributions amounts to degrading treatment
Court orders
#- 1.Declaration that the claimant is entitled to a basic salary of Kshs.348,056, house allowance of Kshs.69,033 and commuter allowance of Kshs.13,000 upon resumption of duty
- 2.The entitlement to be factored with all annual increments of 4% per annum and any CBA salary increases
- 3.Respondents directed to tabulate the salary payable to the claimant together with arrears and file in court within 30 days from the date of judgment
- 4.Mention on 30th July 2020 for adoption of the tabulation as the final award of the court
- 5.The 1st respondent to pay the claimant's costs of the suit
- 6.Interest at court rates from date of filing suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Constitution Articles 27, 28, 41 and 47
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mungai Keriko v Jomo Kenyatta University of Agriculture and Technology & 2 others [2020] KEELRC 892 (KLR)", Case Analysis (2020). Cause No 718 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/892/eng@2020-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.