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ELRCPartially AllowedCause No. 13 of 2019· [2021] KEELRC 1495 (KLR)

Alfred Mumpasoi Keriolale v Narok County Government & another [2021] KEELRC 1495 (KLR)

Employment and Labour Relations Court of Kenya
27 January 2021
MMM. Mbaru
2,799 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that gratuity must be written into an employment contract or policy to be payable, and gazette notices on gratuity do not apply retroactively.

What this practically means

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Executive summary

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The claimant was employed by the 1st respondent on 2nd January, 2014 as Secretary and Chief Executive Officer of the Bursaries Management Board on a five-year contract at a monthly salary of Ksh.187,148, later reassigned as Senior Administrative Officer at Narok Referral Hospital, and resigned effective 7th February, 2017 after serving about three years. He claimed gratuity of Ksh.1,287,952 at 31% of basic pay for years worked, a certificate of service, interest and costs, relying on an SRC Gazette Notice and a Council of Governors circular. The respondents opposed the claim, contending gratuity was conditional on completion of the contract term; the claimant was a public, not state, officer under Article 260 of the Constitution; his contract contained no gratuity clause; the HR Manuals provide that a resigning officer forfeits retirement benefits; and the SRC notice and CoG circular post-dated his resignation and cannot operate retrospectively. They also relied on his forfeiture of benefits under the Lap Fund Secured Retirement Scheme. The court found the Senior Administrative Officer position is not a state office under Article 260, the SRC notice took effect on 8th August, 2017 after the claimant's employment ceased, and the CoG circular was equally inapplicable. Without any contractual, policy or treaty basis for gratuity, the claim had no legal foundation. The claim was found without merit save that the claimant is entitled to a Certificate of Service under section 51 of the Employment Act, 2007, with each party bearing own costs. Judgment delivered at Nairobi on 27th January, 2021 by M. Mbaru, Judge.

Key legal issues

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01

Whether the claimant was entitled to gratuity under the SRC Gazette Notice No.6518 of 7th July, 2017

Holding

The claim is not entitled to gratuity under the SRC Gazette Notice; his position of Senior Administrative Officer was not a state office under Article 260 of the Constitution and the notice took effect on 8th August, 2017, after his employment had ceased

Reasoning

The SRC Gazette Notice No.6518 listed the county state officers entitled to service gratuity at 31% of basic remuneration for the term served. The offices listed were County Governor, Deputy Governor, Speaker, Members of County Executive Committee, Deputy Speaker and Members of the County Assembly. The claimant's position of Senior Administrative Officer was a public office but not a state office under Article 260. Even assuming he were a state officer, the notice only took effect on 8th August, 2017, after his resignation on 7th February, 2017.

p. 4
02

Whether the Council of Governors circular dated 5th September, 2017 entitled the claimant to gratuity

Holding

The circular merely reinforced the SRC Gazette Notice and, having been issued after the claimant left employment, was not applicable to him

Reasoning

The court read the Council of Governors circular as reinforcing the SRC Gazette Notice dated 7th July, 2017 effective 8th August, 2017. The circular was issued after the claimant had resigned, and the gratuity therein was for state officers on fixed terms who serve the full term. The claimant resigned mid-term and was not covered.

p. 4
03

Whether gratuity was payable in the absence of a contractual, policy or treaty basis

Holding

Absent a provision in the contract of service, agreement, private treaty or employer policy, there is no legal basis for a claim of service gratuity

Reasoning

The claimant's contract of appointment dated 2nd January, 2014 contained no clause on payment of gratuity. The respondents' Human Resource Manuals provide that an officer who resigns forfeits all claims to retirement benefits. Gratuity is payable as agreed in the contract or under a collective agreement or established policy; none existed here, so the claim fails.

p. 4
04

Entitlement to a certificate of service

Holding

The claimant is entitled to a Certificate of Service pursuant to section 51 of the Employment Act, 2007

Reasoning

The court found the certificate of service is due to all employees at the end of employment under section 51 of the Employment Act, 2007. The respondents confirmed it was ready for collection, and the court ordered its issuance as the only successful limb of the claim.

p. 4

Legal principles established

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  • Payment of gratuity is payable only where provided for in the contract of service, a collective bargaining agreement, policy or private treaty, and statutory gazette notices on gratuity for state officers do not apply retrospectively to employees who ceased employment before their effective date
  • A certificate of service is due to all employees at the end of employment pursuant to section 51 of the Employment Act

Court orders

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  1. 1.Claim dismissed as without merit save that the claimant shall be issued with a Certificate of Service pursuant to section 51 of the Employment Act, 2007
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 260
  • Constitution of Kenya, 2010Article 230(4)(a)
  • Employment Act, 2007Section 51
  • County Government Actnull
  • Narok County Bursaries Act, 2013Sections 6 and 7
  • Pensions Actnull
  • County Public Service Human Resource Manual, 2013Section L.15
  • Human Resource Policies and Procedures Manual for the Public Service, 2016Section D.32

Cases cited (4)

  • Cecilia Wangechi Ndungu versus the County Government of Nyeri & another, Cause No.1222 of 2015 (Nyeri)
  • Nelson Keshei versus Narok County Government & another [2019] eKLR
    [2019] eKLR
  • Tom Otieno Odongo versus Cabinet Secretary Ministry of Labour Social Security Services & another [2013] eKLR
    [2013] eKLR
  • David Ngugi Waweru versus Attorney general & another [2017] eKLR
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; claim under contract of service and section 51 of the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfred Mumpasoi Keriolale v Narok County Government & another [2021] KEELRC 1495 (KLR)", Case Analysis (2021). Cause No. 13 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1495/eng@2021-01-27

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