Tonny Oira Bironga & 5 others v County Covernment of Nyamira & another [2022] KEELRC 831 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Lawfulness of the secondment
The secondment was justified and procedurally correct under sections 72, 73 and 74 of the County Governments Act
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.
Effect of the nullified second appointment
The nullified 26.10.2016 appointments did not take effect and the claimants reverted to their secondment contracts for the remainder of the term
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.
Whether the claimants rendered services
On a balance of probability the claimants rendered services throughout the secondment
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.
Entitlement to salaries and benefits
Breach of contract established; the computed sum of Kshs 24,592,372 awarded
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.
Legal principles established
#- 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
#- 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.Claimants entitled to certificates of service for the contract period between 1.4.2016 and 1.4.2019
- 3.Claim for general damages for breach of contract declined
- 4.Prayer for exemplary damages declined
- 5.Claimants awarded costs of the suit plus interest
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, County Governments Act and the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- SMW v DHL Kenya (Cause 698 of 2019) [2023] KEELRC 1468 (KLR)[2023] KEELRC 1468 (KLR)15 Jun 2023applied
Cite this brief
#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.