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ELRCPartially AllowedCause No. E002 of 2021· [2022] KEELRC 831 (KLR)

Tonny Oira Bironga & 5 others v County Covernment of Nyamira & another [2022] KEELRC 831 (KLR)

Employment and Labour Relations Court
10 February 2022
5,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Six seconded county workers won Kshs 24.6 million in unpaid salaries after the court ruled a cancelled promotion did not cancel their original contracts.

What this practically means

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Executive summary

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Six public officers seconded from the Teachers Service Commission and the Ministry of Interior to the County Government of Nyamira with effect from 1.4.2016 on three-year secondment contracts sued for unpaid salaries and benefits of Kshs 24,592,372, general damages, exemplary damages, certificates of service, costs and interest. The respondents admitted the secondment but alleged the appointments were irregularly procured and nullified, that the claimants never rendered services or were placed on the payroll, and raised res judicata and limitation. The court found the secondment lawful under sections 72 to 74 of the County Governments Act, and held that the substantive appointments of 26.10.2016, having been nullified on 24.1.2017 before taking effect, did not terminate the secondment contracts: the claimants reverted to their secondment positions until released by letter dated 29.3.2019. The allegation that the claimants absconded was rejected because no warning letters or disciplinary proceedings existed, and the release letter thanked them for services rendered. Breach of section 17 of the Employment Act was established. The court awarded the full claimed sum of Kshs 24,592,372, subject to statutory deductions and with interest at court rates from the date of filing, plus certificates of service for 1.4.2016 to 1.4.2019, and costs of the suit with interest. General and exemplary damages were declined as the salary award fully restored the claimants. Judgment delivered electronically at Nakuru on 10 February 2022 due to Covid-19 measures.

Key legal issues

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01

Lawfulness of the secondment

Holding

The secondment was justified and procedurally correct under sections 72, 73 and 74 of the County Governments Act

Reasoning

The Board requested the secondment to fill a staffing gap, executed 3-year written contracts and posted the claimants to the host department. The County Assembly ad-hoc committee minutes confirmed the secondment was properly procured, and the Assembly appropriated funds for the claimants' salaries and arrears in the 2018/2019 supplementary estimates.

p. 5
02

Effect of the nullified second appointment

Holding

The nullified 26.10.2016 appointments did not take effect and the claimants reverted to their secondment contracts for the remainder of the term

Reasoning

The second appointments were nullified on 24.1.2017 before taking effect. An employee on secondment who applied for promotional positions did not lose his secondment position absent resignation, so nullification of the new appointments restored the secondment contracts running from 1.4.2016 to 1.4.2019.

p. 6
03

Whether the claimants rendered services

Holding

On a balance of probability the claimants rendered services throughout the secondment

Reasoning

The release letter of 29.3.2019 thanked the claimants for services rendered. RW1's allegation of abscondment was unsupported by any warning letters or disciplinary proceedings, so the allegation failed. Even absent services, the fault would lie with the host employer that kept them idle.

p. 6
04

Entitlement to salaries and benefits

Holding

Breach of contract established; the computed sum of Kshs 24,592,372 awarded

Reasoning

The respondents never paid the claimants for the three-year contract, breaching section 17 of the Employment Act. The claimants' computation matched the sum appropriated by the County Assembly, and the court found the computation in paragraph 23 of the statement of claim correct.

p. 7

Legal principles established

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  • An employee on secondment whose new substantive appointment is nullified reverts to the secondment contract unless he resigned from the primary employment
  • An employer must pay all wages earned by an employee under a contract of service

Court orders

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  1. 1.Judgment entered for the claimants in the sum of Kshs 24,592,372 being unpaid salaries and benefits, subject to statutory deductions, with interest at court rate from the date of filing the suit
  2. 2.Claimants entitled to certificates of service for the contract period between 1.4.2016 and 1.4.2019
  3. 3.Claim for general damages for breach of contract declined
  4. 4.Prayer for exemplary damages declined
  5. 5.Claimants awarded costs of the suit plus interest

Authorities

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Legislation

  • Constitution of KenyaSection 15(2)(a) of the Sixth Schedule; Articles 10, 232(c)(g) and (i)
  • Public Service ActSection 42(1)
  • County Governments ActSections 63, 65(1)(a), 66, 72, 73, 74, 75(1)
  • Employment ActSections 17, 51
  • Public Service Commission Guidelines on Secondments in the Public ServiceClause 1.2, paragraph 5

Cases cited (3)

  • Nahashon Cheruiyot & Ngeno v Strengthening of Mathematics & Science Education project & Another
    [2015] eKLR
  • Governor Bungoma County v John Mining Timoi & 19 others
    [2019] eKLR
  • Republic v Secretary County Public Services Board & another Ex-parte Hulbai Gedi Abdille
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, County Governments Act and the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Tonny Oira Bironga & 5 others v County Covernment of Nyamira & another [2022] KEELRC 831 (KLR)", Case Analysis (2022). Cause No. E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/831/eng@2022-02-10

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