Githanga & 3 others v County Government of Nyandarua (Cause 358 of 2016) [2022] KEELRC 1348 (KLR)
The bottom line
#A Kenyan county government was ordered to pay each employee Kshs.1 million for cutting house allowances without consulting them or issuing revised contracts.
What this practically means
#Executive summary
#Key legal issues
#Whether payment of house allowance below the contractual amount without consultation was lawful
The respondent's action was in breach of law and of the employment contract; the respondent is guilty of breach.
The appointment letters stipulated a house allowance of Kshs.24,000/= but the claimants were paid less following an SRC circular. Under section 10(5) of the Employment Act, where a matter stipulated in the contract changes, the employer must, in consultation with the employee, revise the contract and notify the employee of the change in writing. There was no consultation, no revised appointment letter and no communication of the change; the respondent admitted it failed to communicate the reduction. Unilateral variation of an essential term such as remuneration constitutes breach of contract and an unfair labour practice.
Whether the failure to enjoin the SRC renders the claim incompetent
The claim against the respondent succeeded notwithstanding that the SRC was not enjoined, since the respondent was the employer bound by the appointment letters.
The respondent argued that it merely implemented SRC regulations and that the SRC, which determines remuneration of public officers, was not enjoined. The court did not accept this as defeating the claim: the respondent itself employed the claimants and issued appointment letters stipulating Kshs.24,000/= house allowance, and admitted failing to communicate the changes. The breach lay with the employer, who was properly sued; the court instead directed concurrence with the SRC to correct the position.
Legal principles established
#- An employer cannot unilaterally vary terms of an employment contract without consultation; any change must be communicated officially vide a revised contract, per section 10(5) of the Employment Act, 2007.
Court orders
#- 1.Award of damages equivalent to Kshs. 1 million to each claimant for breach of contract
- 2.Direction that the respondents seek concurrence with the SRC to correct the mistakes done in altering the house allowance, or alternatively consult with the claimants and issue revised contracts reflecting the correct position
- 3.Respondents to pay costs of the suit plus interest at court rates with effect from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (dispute relating to employment and labour relations); not expressly cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githanga & 3 others v County Government of Nyandarua (Cause 358 of 2016) [2022] KEELRC 1348 (KLR)", Case Analysis (2022). Cause No 358 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1348/eng@2022-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.