Vipingo Ridge Limited v Swalehe Ngonge Mpitta [2022] KEELRC 309 (KLR)

The court first analysed whether serial non-payment of monthly house allowance constitutes a continuing injury, concluding each monthly default is a distinct cause of action. However, binding precedent of the Court of Appeal in G4S held that suits for recovery of employee benefits should be filed within three years of termination, implying claims accrued more than three years earlier may still be lodged within that window. The Respondent's suit fell squarely within that period. The ELRC decision in Kengo was held to be at cross purposes with the Court of Appeal and could not prevail.

The letter of appointment made no provision for house allowance, and the pay slips listed only basic pay, overtime and leave encashment. Oral evidence could not vary the written contract. Although the word 'consolidated' ordinarily raises a presumption that allowances are included, that presumption is rebuttable; the employee's pay slip evidence showing omission of house allowance rebutted it. The burden of proving or disproving disputed written terms lies on the employer under section 10(7) of the Employment Act, and the Appellant produced no documentary proof.

Employment statutes set minimum terms; parties may improve on them but not contract below the floor. The improved salary reflected better negotiation, not a substitution of statutory entitlements. Since the documentary record showed no express provision of house allowance, the employer could not renege by converting part of the improved pay into house allowance.

The Appellant made no submissions on the interest ground, so it was treated as abandoned. On costs, the principle that costs follow the event applied; the Respondent won the house allowance claim at trial, and the fact that some claims were disallowed did not demonstrate an abuse of discretion.