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ELRCPartially AllowedNot stated in the judgment as provided· [2022] KEELRC 1407 (KLR)

Kombo v Governor Lamu County & 2 others (Petition E003 of 2021) [2022] KEELRC 1407 (KLR)

Employment and Labour Relations Court
29 June 2022
1,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, Shekue Kahale Kombo, filed two applications dated 4th April 2022 before the Employment and Labour Relations Court. Application A sought orders compelling the Respondents to issue him with a clearance certificate and a certificate of service following termination of his employment with the 3rd Respondent; it was unopposed. Application B sought review of the court's earlier compensation award of Ksh. 1,386,000/=, which he asked be varied to Ksh. 8,000,000/=, contending that his submissions - misfiled at the registry and thus never considered in the judgment - amounted to an error apparent on the face of the record, and that the County Governments Act rather than section 49 of the Employment Act should have governed quantum. The Respondents opposed Application B, arguing the court was bound to consider only the evidence and applicable law and that the complaint lay on appeal. The court, Manani J, held that section 51 of the Employment Act imposes a mandatory duty on the employer to issue a certificate of service upon termination, and directed the 3rd Respondent, through its County Public Service Board, to issue it. On review, the court held that the Employment Act applies to county public servants and that the County Governments Act has no peculiar provisions on computation of compensation, so section 49 governs. A court may exceed the section 49 ceiling only in the clearest cases with cogent justification, and dissatisfaction with the adequacy of an award is a matter for appeal, not review. Application B was declined. Each party was ordered to bear its own costs. The ruling was delivered online pursuant to Covid-19 directives with the parties' consent.

Key legal issues

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01

Entitlement to a certificate of service

Holding

The 3rd Respondent is under a mandatory statutory duty to issue the Applicant a Certificate of Service since the employment relationship has been terminated

Reasoning

Section 51 of the Employment Act obliges an employer to issue a certificate of service upon termination unless employment lasted under four weeks. The Applicant served more than a month and the Respondents' own position was that his employment was terminated, evidencing severance. Failure to issue the certificate also stalls processing of terminal dues. The plea, though not specifically made in the petition, is covered by the statute.

p. 2
02

Governing law for assessment of compensation for a county public servant

Holding

Section 49 of the Employment Act, not the County Governments Act, guides assessment of compensation

Reasoning

Section 3 of the Employment Act extends it to all employment relations except the disciplined forces, Kenya Coast Guards, National Youth Service and family enterprises. County Government employees fall within its scope. The County Governments Act contains no peculiar provisions on computation of compensation, so section 49 provides the guide, as confirmed in the Idriss Aden Mukhtar and Walid Khalid decisions.

p. 3
03

Whether failure to consider misfiled submissions is an error apparent on the face of the record warranting review

Holding

No review; a court is bound to consider the evidence and applicable law, not necessarily submissions, and dissatisfaction with quantum lies on appeal

Reasoning

The Applicant's submissions were misfiled and not on the record when judgment was written. The court holds that even had the submissions been considered, it would have reached the same conclusion under section 49. Any complaint about the adequacy of the award is a matter suitable for appeal, citing Fredrick Mwania Musava v Alpharama Ltd.

p. 4

Legal principles established

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  • Section 51 of the Employment Act makes issuance of a certificate of service mandatory upon termination of employment
  • The Employment Act applies to county public servants; the County Governments Act has no peculiar provisions guiding computation of compensation, so section 49 of the Employment Act applies
  • A court may award damages beyond the section 49 ceiling only in the clearest of cases with cogent justification, but is not obliged to do so merely because rights violations were pronounced
  • Grievance as to the satisfactoriness of an award of compensation is a matter for appeal, not review

Court orders

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  1. 1.Application A allowed to the extent that the 3rd Respondent issues the Applicant with a Certificate of Service in terms of section 51 of the Employment Act
  2. 2.Application B declined
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 3
  • Employment Actsection 49
  • Employment Actsection 51
  • County Governments Actgeneral
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (3)

  • County Government of Garissa & another v Idriss Aden Mukhtar & 2 others
    [2020] eKLR
  • Governor, County Government of Mombasa v Walid Khalid and others CA No. 155 of 2018
  • Fredrick Mwania Musava v Alpharama Ltd
    [2022] eKLR
Jurisdiction invoked
Sections 49 and 51 of the Employment Act; ELRC review jurisdiction over its own decision

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, "Kombo v Governor Lamu County & 2 others (Petition E003 of 2021) [2022] KEELRC 1407 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1407/eng@2022-06-29

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