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ELRCPartially AllowedNot stated in the judgment· [2022] KEELRC 1036 (KLR)

Joseph Mungai Keriko v Jomo Kenyatta University of Agriculture and Technology & 2 others [2022] KEELRC 1036 (KLR)

Employment and Labour Relations Court
21 January 2022
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan university professor won Kshs.11.87 million in salary arrears after the court rejected both sides' calculations and did the maths itself.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) gives effect to the Court's judgment of 12th June 2020, which found the Claimant entitled to a basic salary of Kshs.348,056, house allowance of Kshs.69,033 and commuter allowance of Kshs.13,000, subject to annual increments and any CBA increases, and directed the Respondent to tabulate the payable salary and arrears. The parties failed to agree on the tabulation and each filed rival computations: the Claimant's totalled Kshs.28,465,909.47 and the Respondent's Kshs.21,822,996.95 plus interest. The Court found both tabulations non-compliant. Applying the judgment's requirement that the Claimant be paid the salary of his substantive post of Professor without reduction of his last salary as Principal, and noting the Respondent's clarification that the Principal's salary was not subject to CBA and that the Claimant was at the ceiling of his scale, the Court computed the differences month by month from 2014 to September 2021, arriving at Kshs.11,870,575.75 on basic salary. It held there were no arrears of house or commuter allowance, that no further increment is payable until the substantive post's salary catches up with the salary being earned, and that interest is payable only on the amount due up to judgment less sums already paid. Final judgment was entered for the Claimant in that sum, with costs to the Claimant against the 1st Respondent.

Key legal issues

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01

Correct tabulation of salary arrears

Holding

The tabulation must apply the salary of the substantive post of Professor but without reducing the last salary received as Principal; both parties' tabulations failed this test

Reasoning

The judgment required payment of the salary attached to the Claimant's substantive post, provided he did not receive less than his last basic salary as Principal. The Respondent clarified the Principal's salary was not subject to CBA and the Claimant was at the ceiling of his scale, so no 4% increment applied. The court computed the differences month by month from 2014 to September 2021, arriving at Kshs.11,870,575.75 on basic salary alone.

p. 2
02

Entitlement to further increments

Holding

No further increment is payable until the substantive post salary catches up with the salary being earned

Reasoning

Because the Claimant's current salary remains higher than that of his substantive post of Professor, granting increments would widen the disparity contrary to the judgment's scheme. The presumption is that after September 2021 the Respondent has been paying the correct salary.

p. 6
03

Interest on the tabulated award

Holding

Interest accrues only on the amount due up to the date of judgment, less the amount already paid

Reasoning

The original judgment directed interest at court rates from the date of filing suit on the withheld salary arrears. In giving effect to that judgment, the court confined interest to the amount found due up to judgment, less payments already made, reflecting that the balance represents tabulated arrears.

p. 6

Legal principles established

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  • Where an employee on tour of duty is to be paid the salary of his substantive post, the award must not reduce the salary he last earned in the substantive position held, and no further increment accrues until the substantive post's salary catches up with the salary currently earned

Court orders

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  1. 1.Final judgment entered for the Claimant against the Respondent in the total sum of Kshs.11,870,575.75 as at September 2021
  2. 2.No further increment payable to the Claimant until the salary for his substantive post catches up with the salary he is earning
  3. 3.No arrears of house allowance or commuter allowance payable
  4. 4.Interest to be paid only on the amount due up to date of judgment, less the amount already paid
  5. 5.The 1st Respondent to pay the Claimant's costs for the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the underlying employment claim; judgment follows and implements the Court's judgment of 12th June 2020

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, "Joseph Mungai Keriko v Jomo Kenyatta University of Agriculture and Technology & 2 others [2022] KEELRC 1036 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1036/eng@2022-01-21

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