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ELRCPartially AllowedPetition dated 2nd June, 2021 (filed 17th June, 2021)· [2022] KEELRC 482 (KLR)

Michael Otieno Onyango v County Public Service Board & 2 others [2022] KEELRC 482 (KLR)

Employment and Labour Relations Court of Kenya
17 March 2022
1,473 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Petitioner, appointed as a Pharmaceutical Technologist by letter dated 19th January 2017 and posted to Nyaribari Chache Sub-County Hospital, sued the Respondents (the County Government and related entities) for failing to pay his salary, allowances and emoluments from the date of engagement despite his continued service. He sought declarations that the non-payment amounted to unfair labour practices, discrimination and violation of his rights under Articles 21, 28, 41 and 47 of the Constitution, an order of mandamus compelling payment, a permanent injunction against harassment to force his resignation, payment of Kshs. 3,851,154/- with interest, and costs. The Respondents filed a memorandum of appearance but did not reply, appear, or file submissions, despite proof of service. The court framed three issues: whether the Petitioner was an employee, whether his rights were infringed, and whether he was entitled to the reliefs sought. Relying on the uncontroverted offer of appointment, letter of acceptance, posting order No. 3/2017 and duty rota, the court found an employment relationship. It held that the failure to pay for close to five years amounted to unfair labour practices contrary to Article 41, noting that the Respondent had taken advantage of the lacuna created when the Petitioner's earlier suit (Kisii CMCC E&LRC Cause No. 11 of 2019) was struck out on jurisdictional grounds under Section 77 of the County Government Act. Applying the maxim that there is no wrong without a remedy, the court issued a declaration of unfair labour practices, mandamus compelling payment of outstanding salaries from 19th January 2017, and a permanent injunction against harassment, with costs and interest borne by the Respondents. The specific lump sum of Kshs. 3,851,154/- was not quantified or awarded directly.

Key legal issues

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01

Whether the Petitioner is an employee of the Respondents

Holding

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

Reasoning

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.

p. 2
02

Whether the Petitioner's rights were infringed upon

Holding

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

Reasoning

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.

p. 3
03

Whether the Petitioner is entitled to the reliefs sought

Holding

Having found infringement, the court granted declarations, mandamus and a permanent injunction, with costs and interest to the Petitioner

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.The costs of the suit and interest to be borne by the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 21
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 41 (including 41(2), (3)(4) and (5))
  • Constitution of Kenya, 2010Article 47
  • County Government ActSection 77

Cases cited (1)

  • Peter Wambugu Kariuki & 16 Others v Kenya Agricultural Research Institute
    Petition No. 2 of 2013
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

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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, "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.