Omanwa v The National Government Constituencies Development Fund (Cause 66 of 2018) [2022] KEELRC 1214 (KLR)
The bottom line
#A Kenyan court awarded a former CDF employee over Kshs 2 million in withheld salary and gratuity because his employer never proved the misconduct used to punish him.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata in light of Kericho JR No. 2 of 2017
Not res judicata; the JR was struck out, not dismissed, so its issues were never conclusively determined on the merits.
The court applied section 7 of the Civil Procedure Act and the five elements of res judicata from the IEBC v Maina Kiai case. It found the parties similar but noted the JR application of February 14, 2017 was struck out for incompetence by Justice Marete on December 11, 2017. Since striking out does not amount to a hearing and final determination on merits, the doctrine was not offended.
Whether the claimant was unfairly terminated or the contract expired by effluxion of time
The contract expired by effluxion of time; the termination was not unfair and the claimant failed to prove unfair termination on a balance of probability.
The contract took effect September 17, 2013 for three years and renewal was at the Board's discretion upon a request made six months before expiry. The claimant requested renewal on May 20, 2016, outside the timelines. The fixed-term contract lapsed in September 2016, subject to a three-month extension to enable Board deliberations, and there was no obligation to renew.
Whether the claimant was entitled to withheld half salary during interdiction
Yes; since the alleged misappropriation was never established, the claimant was entitled to the salary withheld during interdiction, calculated on a gross salary of Kshs 188,310.
The claimant was interdicted on half pay, served a show cause letter, and invited to a disciplinary hearing that never took place. No charges were preferred and EACC never prosecuted him. Payslips showed a gross salary of Kshs 188,310, from which the court computed half salary for 14 months from September 2015 to October 2016.
Whether the claimant was entitled to gratuity
Yes; gratuity was due under clause 13 of the contract since separation was by expiry of contract, not gross misconduct.
Having found the separation was due to expiry of the contract term rather than dismissal for gross misconduct, the exclusion of gratuity for gross misconduct did not apply. The court computed gratuity under clause 13 of the September 7, 2013 contract as annual basic salary x 31% x 3 years, awarding Kshs 508,856.94.
Whether reinstatement and damages for unfair termination should issue
No; reinstatement barred both by the finding of no unfair termination and the three-year rule in section 12(3)(vii) of the ELRC Act; damages also declined.
Since unfair termination was not established, the principal reliefs fell away. Independently, the claimant had been out of employment for over three years since 2016, and section 12(3)(vii) of the Employment and Labour Relations Court Act bars reinstatement after three years from separation.
Legal principles established
#- A suit struck out for being incompetent is not heard and finally determined on the merits, so res judicata does not bar a subsequent suit raising those issues.
- A fixed term contract does not renew automatically even where there is a renewal clause, and an employer is not obliged to renew.
- Where alleged misconduct justifying withholding of salary or denial of gratuity is never established through a hearing or conviction, the employee is entitled to the withheld salary and gratuity.
Court orders
#- 1.Judgment entered for the claimant against the respondent in the total sum of Kshs 2,015,336.94 comprising withheld half salary of Kshs 1,318,170; salary for November 2016 of Kshs 188,310; and gratuity of Kshs 508,856.94
- 2.Award subject to statutory deduction but in addition to costs and interest at court rates from the date of filing the suit
- 3.Costs of the claim awarded to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court Act and Article 41 of the Constitution (employment and labour relations dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omanwa v The National Government Constituencies Development Fund (Cause 66 of 2018) [2022] KEELRC 1214 (KLR)", Case Analysis (2022). Kericho ELRC 66 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1214/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.