Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Claim (Nakuru), filed 5th July 2018, amended 5th August 2019 (specific number not stated in judgment)· [2022] KEELRC 1096 (KLR)

Omanwa v National Government Constituencies Development Fund (Cause 66 of 2018) [2022] KEELRC 1096 (KLR)

Employment and Labour Relations Court
12 May 2022
OMOnesmus N Makau
5,508 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a CDF employee over KShs 2 million in withheld salary and gratuity, but ruled his fixed-term contract simply expired rather than being unfairly terminated.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent from 2007 as Funds Accounts Manager (Mbita Constituency), was interdicted on half pay on 29th July 2015 over alleged misappropriation of about Kshs 11 million in 14 audited projects. His three-year contract expired in September 2016, was extended three months to enable the Board deliberate on renewals, and by letter dated 25th November 2016 he was informed the contract would not be renewed. He sued for declarations of unfair termination, reinstatement, loss of remuneration, damages, and gratuity. The respondent argued the claim was res judicata given Kericho JR No. 2 of 2017, that the contract simply expired, and that renewal was refused due to the audit findings. The court framed three issues: res judicata, unfair termination versus expiry, and reliefs. It held the suit was not res judicata because the JR application was struck out as incompetent, not dismissed on the merits. It found the contract lapsed by effluxion of time: the renewal request was made outside the contractual six-month window, and a fixed-term contract does not renew automatically. Unfair termination was not proved. On remedies, reinstatement was refused (contract not unfairly terminated and over three years had elapsed under Section 12(3)(vii) ELRC Act), as were damages for unfair termination, exemplary damages, leave allowance, and salary for the period under the 2017 court order. However, since the misappropriation was never established, the claimant was awarded withheld half salary for the interdiction period (Kshs 1,318,170), November 2016 salary (Kshs 188,310), and gratuity (Kshs 508,856.94), totaling Kshs 2,015,336.94, subject to statutory deductions, plus costs and interest from filing.

Key legal issues

#
01

Res judicata

Holding

The suit is not res judicata because Kericho JR No. 2 of 2017 was struck out, not dismissed, so its issues were not finally determined on the merits.

Reasoning

Section 7 of the Civil Procedure Act requires that the matter was directly and substantially in issue, between the same parties under the same title, heard and finally determined by a competent court. Although the parties were the same, the JR application dated 14th February 2017 was struck off as incompetent and bad in law; striking out is not a determination on the merits, so the claimant could return to court on the same and further issues.

p. 8
02

Unfair termination versus expiry of contract

Holding

The contract expired by effluxion of time; the claimant failed to prove unfair termination.

Reasoning

The contract ran for three years from 17th September 2013, expiring September 2016, with renewal subject to a request six months before expiry. The claimant requested renewal on 20th May 2016, outside the timeline. The Board extended all Fund Account Managers' contracts by three months to deliberate on renewals but was under no obligation to renew. The claimant did not prove on a balance of probability that his contract was unfairly terminated.

p. 9
03

Withheld salary during interdiction

Holding

Claimant entitled to the half salary withheld during the whole period of interdiction, calculated as Kshs. 94,155 x 14 = Kshs. 1,318,170, using gross salary of Kshs. 188,310 per payslips.

Reasoning

The misappropriation allegations were never established: no charges were preferred, the disciplinary hearing never took place, and EACC indicated no money was lost. Since the claimant admitted receiving half salary and payslips confirmed it, the court awarded the withheld half for the interdiction period, plus November 2016 salary because the contract was extended to 30th November 2016.

p. 9
04

Gratuity

Holding

Claimant entitled to gratuity under clause 13 of the contract, computed as annual basic salary x 31% x 3 years = Kshs. 508,856.94.

Reasoning

Gratuity was not payable to an employee exiting for gross misconduct, but the court had found the separation was due to expiry of the contract term and the alleged misappropriation was never proved. The entitlement flowed from clause 13 of the employment contract dated 7th September 2013.

p. 10

Legal principles established

#
  • A fixed term contract does not renew automatically even where a renewal clause exists; renewal depends on compliance with contractual timelines such as a timely request.
  • A suit struck out (as opposed to dismissed) is not conclusively determined on the merits, so res judicata does not bar a subsequent suit on the same issues.
  • An employee interdicted on allegations that are never established is entitled to the salary withheld during the interdiction.
  • Reinstatement is not available where more than three years have lapsed since separation.

Court orders

#
  1. 1.Judgment entered for the claimant against the respondent
  2. 2.Withheld half salary of Kshs. 1,318,170
  3. 3.Salary for November 2016 of Kshs. 188,310
  4. 4.Gratuity of Kshs. 508,856.94
  5. 5.Total award of Kshs. 2,015,336.94 subject to statutory deductions
  6. 6.Costs of the claim to the claimant plus interest at court's rate from the date of filing the suit

Authorities

#

Legislation

  • Employment ActSections 41 and 43
  • Public Audit Act 2015Sections 31 and 33
  • Civil Procedure ActSection 7
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • CDF ActSections 45 and 56
  • Constitution of KenyaArticle 41
  • Employment and Labour Relations Court (Procedure) RulesRule 4(1) & (2); Rule 28(3)

Cases cited (15)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Paul Maside Simidi v National Oil Corporation of Kenya and another
    [2015] eKLR
  • Fredrick Saundu Amollo v Principal Namanaga Mixed Day Secondary School and 2 others
    [2014] eKLR
  • Teresa Carlo Omondi v Transparency International Kenya
    [2017] eKLR
  • Lotta v Tanaki
    [2003] 2 EA 556
  • Commissioner of Lands v Hotel Kunste Ltd
    [1997] eKLR
  • Sanghani Investment Limited v Officers in charge Nairobi Remand and Allocation prison
    [2007] 1 EA 354
  • Kenya Power and Lighting Company v Aggrey Lukorito Wasike
    [2017] eKLR
  • Uhuru Highway Development Limited v Central Bank of Kenya
    [1999] eKLR
  • Republic v City Council of Nairobi and 2 others
    [2014] eKLR
  • Arthur Njuguna Karogi v National Government Constituencies Fund Board
    2018] eKLR
  • Charles Oyunge Onkware v Telckom Kenya Limited
    [2016] eKLR
  • Dickson Mwendwa Munuve v Oceanfreight (EA) Limited
    [2013] eKLR
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Rajab Barasa & 4 Others v Kenya Meat Commission
    2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act (first-instance employment claim; Section 12(3)(vii) invoked on reinstatement)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Omanwa v National Government Constituencies Development Fund (Cause 66 of 2018) [2022] KEELRC 1096 (KLR)", Case Analysis (2022). ELRC Claim (Nakuru), filed 5th July 2018, amended 5th August 2019 (specific number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1096/eng@2022-05-12

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