Steve v Kenya Ports Authority (Cause E008 of 2020) [2022] KEELRC 1471 (KLR)
The bottom line
#A Kenyan court ruled that Kenya Ports Authority unfairly kept an employee in a higher role for nearly seven years without higher pay, awarding him over Ksh.1.6 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant acted as Senior Permanent Way Officer Grade HM2 and for how long
The Claimant was appointed to the post in acting capacity with effect from 26th July 2013 and remained on it until his retirement on 26th May 2020 (six years and ten months), though never formally confirmed
The Head of Civil Engineering's letter of 26th July 2013 effected internal posting of the Claimant to the senior post. Although management declined confirmation for lack of qualifications, there was no evidence that the Claimant was ever recalled from the post. His uncontroverted testimony was that he remained there until retirement.
Whether the Claimant suffered unfair labour practice
Yes - the Respondent's refusal to confirm the Claimant while continuing to hold him to the higher post without pay and allowances was unfair labour practice
The court found no justification for the Respondent to decline confirmation yet keep the Claimant performing the higher duties for nearly seven years without the attendant remuneration. Uncontroverted evidence of diligent performance of the higher duties supported the finding.
Entitlement to and quantum of the reliefs sought
Declarations of entitlement to full HM2 salary and allowances declined; instead the Claimant awarded 15% of his substantive basic salary of Ksh.132,300 per month from August 2013 to May 2020
The pleaded underpayment and allowance variance were special damages requiring strict proof. Neither party produced the Scheme of Service showing HM2 salary and allowances for the relevant period, and the Claimant did not cross-examine RW-1 on the point. The court fell back on the Human Resource Head's proposals of 10% (2013) and 15% (2015), adopting the latest.
Limitation under Section 90 of the Employment Act
The failure to pay for acting in the higher post was a continuing injury which ceased on retirement on 26th May 2020; the suit filed 26th October 2020 was within the limitation period
Section 90 applies to continuing injuries; since the injury continued until retirement shortly before filing, the claim was not time-barred.
Legal principles established
#- A claim for salary underpayment and allowance variance is in the nature of special damages and must be strictly proved with evidence of the applicable salary structures
- Non-payment for work done in acting capacity on a higher job grade amounts to a continuing injury under Section 90 of the Employment Act 2007, which ceases upon the employee's retirement
- Where an employer posts an employee to perform duties of a higher post without confirming him, refusal to pay the higher salary and allowances for years constitutes unfair labour practice
- Where the precise higher-grade salary cannot be proved, an internal proposal by the employer's Head of Human Resource to pay an acting allowance (percentage of substantive basic salary) may be adopted to compute the award
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent for Ksh.1,627,290 being 15% of the Claimant's substantive monthly salary of Ksh.132,300 payable for six years and ten months (August 2013 to May 2020)
- 2.Costs of the claim awarded to the Claimant
- 3.Interest at court rates on the award
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Steve v Kenya Ports Authority (Cause E008 of 2020) [2022] KEELRC 1471 (KLR)", Case Analysis (2022). Memorandum of Claim dated 22nd October 2020 (filed 26th October 2020) - ELRC Cause, Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1471/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.