Magdalene Kiboi & 17 others v Engen Kenya Limited [2020] KEELRC 1060 (KLR)
The bottom line
#Kenya's Employment Court dismissed 18 Engen employees' claim for Kshs.22 million in house allowance because their gross salaries already covered it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claim is res judicata given the prior Cause No. 602 of 2018
The Claim is not res judicata; the subject matter of the two suits is different and Cause No. 602 of 2018 was settled by consent, not determined on merit
The court compared the pleadings in Cause No. 602 of 2018 with the instant cause. The prior suit concerned threatened unfair termination and transfer of the Respondent's business, whereas the instant claim concerns house allowance, which was not raised in the prior suit. The prior suit was also compromised by a consent adopted as a full and final settlement rather than heard and determined on merit, so the essentials of res judicata under Section 7 of the Civil Procedure Act were not satisfied.
Whether the Claim is time barred under Section 90 of the Employment Act
The Claim is not time barred because it constitutes a continuing injury, the Claimants still being in the Respondent's employment
Section 90 of the Employment Act requires claims arising out of the Act or a contract of service to be brought within three years, but in the case of continuing injury or damage within twelve months after cessation thereof. Since the need for payment of house allowance arose whenever salaries fell due, and the Claimants remained employed at the time of filing (a fact not controverted), the claim was a continuing injury and not statute barred.
Whether the Claimants are entitled to payment of house allowance
The Claim fails; the Claimants' salaries were a gross consolidated package inclusive of house allowance
Prior to 2000 the Claimants' salaries were disaggregated into basic pay and house allowance, but were subsequently consolidated, as evidenced by salary review letters showing continuous increases with no decrease at any point. The pay slips referenced Gross Pay, and following Sani Orina v Hiprora Business Solutions, gross salary ordinarily includes house allowance. The court concluded the salaries paid were a gross consolidated package and dismissed the claim for house allowance.
Legal principles established
#- Gross salary, as opposed to basic salary, usually includes house allowance and other allowances paid by an employer
- A claim for non-payment of house allowance where the employee remains in employment is a continuing injury under Section 90 of the Employment Act, 2007, and is not time barred while employment subsists
- Res judicata does not arise where the subject matter of the two suits is different, even where a prior suit between the same parties was compromised by consent
Court orders
#- 1.The Respondent's Notice of Motion application dated 2nd July 2019 seeking striking out of the Memorandum of Claim is effectively rendered moot by the dismissal of the entire Claim.
- 2.The Claim for house allowance fails and is dismissed.
- 3.The entire Claim fails with each party bearing their own costs.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution of Kenya, 2010 (Articles 28, 41, 43 and 47 invoked in the Claim); limitation under Section 90 of the Employment Act, 2007
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.
- Ndiga v Aquavita Limited (Cause E689 of 2024) [2025] KEELRC 2195 (KLR)[2025] KEELRC 2195 (KLR)24 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Magdalene Kiboi & 17 others v Engen Kenya Limited [2020] KEELRC 1060 (KLR)", Case Analysis (2020). ELRC Cause (Nairobi), filed 22nd November 2018 (Claim); Respondent's Notice of Motion dated 2nd July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1060/eng@2020-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.