Esevwe & 57 others v University Of Nairobi (Cause 511 of 2016) [2022] KEELRC 4117 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employer can recover allowances paid by mistake, and non-unionised staff cannot claim benefits negotiated under a union CBA.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were discriminated against in respect of house allowance
No discrimination established. The claimants did not particularise the comparators said to have been treated differently, and the differential treatment was justified by unionisation and lawful pay structures.
The court applied section 5 of the Employment Act and Article 27 of the Constitution, holding that discrimination requires two similarly situated persons treated differently without justification. The claimants' statement of claim did not articulate particulars. Further, placing a higher house allowance for unionised employees as against unionisable employees who have not joined the union did not amount to unfair discrimination.
Whether the enhanced house allowance of Ksh 17,013 was payable
The payment was an accounting error, unlawful and recoverable. The lawful house allowance is 15% of basic wage under the Wage Orders unless negotiated in a registered CBA.
The respondent admitted an accounting error from October 2015 and rectified it under section 19(1)(e) of the Employment Act, which permits deduction of amounts paid in error or in excess of wages due. The Ksh 17,013 was not provided for under the Wage Orders nor approved by the SRC. The claimants, not being unionised, cannot claim under the CBA or return to work formula.
Whether the court should review the respondent's salary structure
No. Salary reviews in the public sector require SRC advisory; the court cannot impose a structure absent SRC approval.
The claimants conceded the respondent is a public entity funded by taxpayers. The SRC is the repository of government advisory on salaries and remuneration payable from public funds, mandated to harmonise public sector salaries. Increasing house allowances was not within the respondent's single power before SRC advice was secured, and no SRC approval was evidenced.
Legal principles established
#- Discrimination against an employee must relate to two similarly situated persons/groups treated differently without justification, and the acts of discrimination must be particularised.
- A payment made to an employee in error is recoverable; an error cannot result in a variation of the employment contract and cannot be justified under section 10(5) of the Employment Act.
- The minimum wage under the Regulation of Wages (General) (Amendment) Orders attracts a house allowance of 15% of the basic wage; anything above must be negotiated under a registered CBA.
- The SRC is the repository of government advisory on salaries and remuneration payable out of public funds; public sector salary reviews require its advisory before being lawfully made.
Court orders
#- 1.Claim dismissed - no underpayment of house allowance as claimed established
- 2.Payments made pursuant to the interim orders of February 16, 2017 to suffice and revert to a house allowance at 15% of the due basic wage unless revised under a CBA
- 3.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment and labour relations matter); not expressly cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esevwe & 57 others v University Of Nairobi (Cause 511 of 2016) [2022] KEELRC 4117 (KLR)", Case Analysis (2022). Not stated in the judgment (ELRC Cause, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4117/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.