Michael Otieno Onyango v County Public Service Board & 2 others [2022] KEELRC 482 (KLR)
The bottom line
#The Employment and Labour Relations Court ordered the Kisii County Government to pay a worker five years of unpaid salary, ruling that working without pay violates Kenya's Constitution.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner is an employee of the Respondents
The court found on the documentary evidence (offer of appointment, letter of acceptance, posting order No. 3/2017 and duty rota) that the Petitioner was in the service of the Respondents, the evidence being uncontroverted
The Petitioner exhibited a letter of offer of appointment dated 19th January 2017, his acceptance dated 3rd March 2017, a posting order dated 20th March 2017 and a duty rota showing he attended duty. The Respondents filed a memorandum of appearance but never replied to the petition, appeared, or filed submissions, so the evidence stood uncontroverted.
Whether the Petitioner's rights were infringed upon
The court held that the failure to pay the Petitioner for close to five years of service amounted to unfair labour practices contrary to Article 41 of the Constitution
Article 41 entitles every person to fair labour practices and fair remuneration for work done. The court found it unfathomable that an employer could enjoy an employee's services for close to five years without pay, and that the Respondent took advantage of the lacuna in the law following the striking out of the earlier suit under Section 77 of the County Government Act.
Whether the Petitioner is entitled to the reliefs sought
Having found infringement, the court granted declarations, mandamus and a permanent injunction, with costs and interest to the Petitioner
The court applied the equitable maxim that there is no wrong without a remedy. It did not award the specific lump sum of Kshs. 3,851,154 claimed; instead it issued mandamus compelling the Respondents to process and pay the outstanding salaries, emoluments and allowances from 19th January 2017.
Legal principles established
#- The right to fair labour practices under Article 41 of the Constitution includes a worker's right to fair remuneration for work done
- Uncontroverted evidence of employment (appointment letter, acceptance, posting order and duty rota) suffices to establish an employment relationship in the absence of contrary evidence
Court orders
#- 1.A declaration that the actions and/or omissions of the Respondents, including the refusal to pay the Petitioner's requisite remuneration and emoluments, amounts to unfair labour practices, punishment, mistreatment and discrimination
- 2.An order of Judicial Review in the nature of Mandamus to compel the Respondents to process and pay the outstanding salaries, emoluments and allowances due to the Petitioner w.e.f 19th January, 2017
- 3.A permanent injunction restraining the Respondents by themselves, agents, servants and/or employees from harassing, intimidating, threatening or otherwise subjecting the Petitioner to any form of threats in relation to this petition
- 4.The costs of the suit and interest to be borne by the Respondents
- Jurisdiction invoked
- Constitution of Kenya, 2010 - Bill of Rights enforcement petition (Articles 21, 28, 41, 47 invoked); prior suit KISII CMCC E&LRC CAUSE NO. 11 OF 2019 struck out for want of jurisdiction under Section 77 of the County Government Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Otieno Onyango v County Public Service Board & 2 others [2022] KEELRC 482 (KLR)", Case Analysis (2022). Petition dated 2nd June, 2021 (filed 17th June, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/482/eng@2022-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.