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ELRCDismissedPetition No 84 of 2017· [2020] KEELRC 1859 (KLR)

Obage v Kenya Revenue Authority (Petition 84 of 2017) [2020] KEELRC 1859 (KLR)

Employment and Labour Relations Court
24 January 2020
OMONESMUS N. MAKAU
5,357 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a KRA employee's petition over unpaid salary, but awarded him costs because KRA only settled his dues after he sued.

What this practically means

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Executive summary

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The petitioner, employed by the respondent since 1996 on permanent and pensionable terms, had his terms converted in 2013 to a three-year renewable fixed term contract. His contract was due to expire on 31st January 2017; he expressed willingness to renew until retirement at 60 in September 2017, but the renewal was only approved and communicated three days before his retirement. He worked eight months without salary and petitioned the court alleging violations of Articles 27, 28, 41 and 47 of the Constitution, seeking declarations, compensation, interest, damages and payment of various dues. The court framed three issues: whether the conversion of terms was irregular; whether the withholding of salary violated his rights; and whether he was entitled to the reliefs sought. On the first, the court held the conversion followed consultation and was voluntarily accepted, distinguishing the unilateral variation cases relied on by the petitioner. On the second, it held that until the Commissioner General communicated acceptance of the renewal, no valid agreement existed, no salary was payable from public coffers, and the withholding did not violate the petitioner's constitutional rights. Consequently, the declaration and all damages, interest and allowance claims failed. The court noted that withheld salary, gratuity, bonus, leave and pension claims were settled during trial, and, although dismissing the petition, awarded the petitioner costs because the respondent failed to settle his claims until suit was filed. Judgment was delivered at Nairobi on 24th January 2020 by Onesiums N. Makau, Judge.

Key legal issues

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01

Whether conversion from permanent and pensionable terms to fixed term contract was irregular

Holding

Conversion was done through consultation and was voluntarily accepted

Reasoning

The court found the respondent made a policy decision, communicated it to the managers, and offered better terms which the petitioner accepted. The petitioner produced no evidence of coercion, never challenged the conversion internally or in court, enjoyed better perks for three years, and voluntarily accepted renewal, earning Kshs. 550,000 plus 25% gratuity versus Kshs. 380,000 previously.

p. 6
02

Whether withholding salary from February to September 2017 violated Articles 27, 28, 41 and 47

Holding

No violation; there was no subsisting contract until renewal was regularised

Reasoning

Renewal was at the discretion of the Commissioner General under Clause 17 and required mutual agreement. Approval of 13 March 2017 was not communicated until 27 September 2017. Without confirmation of renewal the petitioner could not be reinstated on payroll, so no salary was payable from public coffers until the contract was regularised.

p. 7
03

Entitlement to reliefs

Holding

Only settled claims survived; all other prayers failed

Reasoning

Withheld salary, gratuity, bonus, leave and pension were admitted as settled during trial. Interest failed as no salary was lawfully due; transport allowance was proved paid; damages failed for absence of constitutional violation. Costs were nonetheless awarded to the petitioner because the respondent only settled after suit was filed.

p. 7

Legal principles established

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  • Until acceptance of a request to renew a contract is communicated by the decision-maker, no valid agreement to renew can be implied and an employer is not obliged to pay salary absent a subsisting contract
  • An employee who accepts better contractual terms and enjoys them cannot approbate and reprobate by later challenging the conversion of terms

Court orders

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  1. 1.Declaration that withholding of salary breached constitutional rights refused; petition dismissed
  2. 2.Claims for withheld salary, gratuity, bonus, leave and pension noted as settled before trial
  3. 3.Petitioner awarded costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 41, 47
  • Employment ActSection 10(5)
  • Employment ActSection 9(3)
  • Employment ActSection 5(6)
  • Employment ActPart 4

Cases cited (11)

  • Joseph Maina Theuri v Gitonga Kabugi & 3 Others
    [2017] eKLR
  • Kenya County Government Workers' Union v County Government of Nyeri & another
    [2015] eKLR
  • James Ang'awa Atanda & 10 others v Judicial Service Commission
    [2017] eKLR
  • Maxwell Miyawa & 7 others v Judicial Service Commission
    [2017] eKLR
  • Janine Buss v Gems Cambridge International School Limited
    [2016] eKLR
  • Kenya Tourist Development Corporation v Sundowner Lodge Limited
    [2018] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Fedelix Mwendwa Muli v Bamburi Cement Limited
    [2018] eKLR
  • Margaret A Ochieng v National Water Conservation & Pipeline Corporation
    [2014] eKLR
  • Jasbir Singh Rai & Others v Tarlochan Rai & Others
  • Elizabeth Kwamboka Khaemba v BOG Cardinal Otunga High School Mosocho & 2 others
    [2014] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction (Articles 27, 28, 41 and 47 of the Constitution invoked) read with employment law claims

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Obage v Kenya Revenue Authority (Petition 84 of 2017) [2020] KEELRC 1859 (KLR)", Case Analysis (2020). Petition No 84 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1859/eng@2020-01-24

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