Francis Ndwigah Nyaga v Transchem Pharmaceuticals Limited [2021] KEELRC 397 (KLR)
The bottom line
#A Kenyan employment court awarded a pharmaceutical technologist only Kshs. 24,000, ruling that salary increments not written into the appointment letter aren't guaranteed entitlements.
What this practically means
#Executive summary
#Key legal issues
#Whether the annual Kshs. 20,000 salary increment became an implied term of employment
It did not; the letter of appointment set out no salary progression and no document supported the claimed entitlement
The court applied the objective theory of contract formation and the principles on implied terms, holding that only express or logically implied terms are enforceable. Since the appointment letter contained no salary progression and the Petitioner produced no document supporting a fixed annual increment, the increments were discretionary and could not found a claim of contractual variation.
Whether the appointment of a new Branch Manager amounted to demotion constituting variation
No; the claim could not stand absent a letter formalising the managerial appointment
The parties had a practice of documenting the employment relationship through letters. Any appointment to a position other than the entry position of Pharmaceutical Technologist would have been formalised by letter. In the absence of such a letter, the claim of appointment to and removal from Branch Manager failed. Similarly, no evidence showed the vehicle was a benefit rather than a tool of work.
Whether the withdrawal of the Kshs. 15,000 licence allowance and deduction of Kshs. 2,000 were unlawful
The allowance withdrawal was lawful; but the Kshs. 2,000 monthly deduction (surcharge) was unlawful for want of procedural fairness
The Kshs. 15,000 was an allowance paid only while the Petitioner's licence was used, and its cessation was unobjectionable, defeating the discrimination claim. However, the surcharge for expired drugs was a disciplinary action requiring procedural fairness, which the Respondent made no attempt to comply with, rendering it unlawful and entitling the Petitioner to a refund.
Whether the burden of proof shifted to the Respondent as custodian of employment records
It did not; the Petitioner, who chose not to testify, could not shift the burden
The court clarified that although the employer must document the employment relationship and in some respects bears the burden, the claimant must still adduce corroborating evidence and, where documents are in the employer's possession, serve a production notice. The Petitioner's failure to testify meant he could not transfer responsibility for proving his case to the Respondent.
Legal principles established
#- A periodic salary increment not set out in the letter of appointment does not crystallise into a term of employment
- An employer's documentary responsibility does not relieve the employee of the burden of proving their case; a production notice should be served for documents in the employer's possession
- A surcharge being a disciplinary action must be undertaken within the confines of procedural fairness
- Constitutional rights violations must be pleaded with precision per Anarita Karimi Njeru
Court orders
#- 1.The Petitioner's claims for payment of unpaid salary increment, adjustment of salary, monthly fees for procurement of annual licence, refund of Kshs. 15,000 deducted from salary and compensation for violation of constitutional rights are disallowed
- 2.Judgment entered in favour of the Petitioner in the sum of Kshs. 24,000 being the amount of an unlawful surcharge
- 3.The Kshs. 24,000 to attract interest at court rates from the date of judgment until payment in full
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Constitution of Kenya, 2010, Article 41 (fair labour practices), Article 27 and Article 28, invoked in an ELRC petition; Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Ndwigah Nyaga v Transchem Pharmaceuticals Limited [2021] KEELRC 397 (KLR)", Case Analysis (2021). Petition No E081 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/397/eng@2021-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.