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ELRCPartially AllowedCause stated as Issue in Dispute filed October 4, 2019 (number not stated in judgment)· [2023] KEELRC 355 (KLR)

Ondieki v Kisii County Assembly Service Board & 2 others (Cause 87 of 2019) [2023] KEELRC 355 (KLR)

Employment and Labour Relations Court
15 February 2023
1,410 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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Kerosi Ondieki, an advocate who served as Speaker of the County Assembly of Kisii from 2013 to September 2017, sued the County Assembly Service Board, the Clerk of the County Assembly and the County Government of Kisii seeking house allowance of Kshs 7,280,000/-, travel reimbursement for trips to Portugal and Singapore, non-practising and prosecutorial allowances of Kshs 2,240,000/-, practising allowance and continuous professional development fees, and gratuity of Kshs 6,537,900/-. The 1st and 2nd Respondents filed a preliminary objection based on section 90 of the Employment Act, which the Court dismissed after the parties failed to comply with directions to file submissions. On house allowance, the Court held the applicable SRC Circulars provided for a house constructed or leased by the County Government, expressly excluding house allowance, and dismissed that head. The Portugal travel claim of Kshs 940,000/- failed for want of invoices or payment records, while the Singapore claim was allowed only to the extent of Kshs 109,085/- proved as paid to Kenya Airways, payable by the County Government. Invoking the Gitonga decision and subject to limitation, the Court awarded non-practice allowance at the SL4 grade rate of Kshs 15,000/-, backdated to October 4, 2016, totalling Kshs 540,000/-. Practising allowance and CPD fees failed for lack of contractual foundation. On gratuity, invoking Gazette Notice No. 2888 of March 1, 2013, the Court directed the 1st Respondent to compute and pay 31% gratuity based on the Claimant's last basic salary. The Court declared the Claimant to have partially succeeded and awarded costs on a half scale.

Key legal issues

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01

Entitlement to house allowance for a Speaker of a County Assembly

Holding

Claim dismissed; entitlement was to a house constructed or leased by the County Government, not house allowance

Reasoning

The Court examined the SRC Circular dated December 13, 2013 which expressly advised that Governors and Speakers be provided with a housing benefit and stated that provision of a house does not include payment of house allowance. The second Circular of May 21, 2015 provided for leasing a house with rent paid directly to the landlord where no house had been constructed. The Clerk testified the Claimant had two homes and never requested housing. The documents relied on did not support the plea for house allowance.

p. 2
02

Reimbursement of travel expenses

Holding

Portugal claim of Kshs 940,000/- failed for lack of proof; Singapore claim allowed only at Kshs 109,085/- against the County Government

Reasoning

The Claimant produced supporting documentation (invitation letter, authority to travel, tickets, boarding passes) but no invoices or payment records demonstrating the Kshs 940,000/- claimed for Portugal. For Singapore, the only proof was payment of Kshs 109,085/- to Kenya Airways, and a letter from the Principal Secretary noted the County Government would meet the expenses. Reimbursement was allowed only as proved.

p. 3
03

Non-practising allowance for an advocate serving as Speaker

Holding

Allowed subject to limitation, backdated to October 4, 2016, applying the SL4 grade allowance of Kshs 15,000/- per month, totalling Kshs 540,000/-

Reasoning

Relying on the Gitonga decision, the Court held that, subject to the law of limitation, the Claimant would be entitled to non-practice allowance. Because the Claimant did not produce the relevant Circulars nor disclose the grade of the office of Speaker, the Court applied the SL4 grade allowance of Kshs 15,000/-. The Cause was filed October 4, 2019, so the award was backdated three years to October 4, 2016.

p. 3
04

Entitlement to gratuity

Holding

The 1st Respondent ordered to compute and pay 31% gratuity based on last basic salary, per Gazette Notice No. 2888 of March 1, 2013

Reasoning

The Court held gratuity is either contract based or statute based. The Claimant produced no contractual documents establishing entitlement, but cited Gazette Notice No. 2888 of March 1, 2013 setting an entitlement for county state officers at 31% of basic pay per year served. Since no pay slip or documents distinguished basic from gross pay, the Court ordered the 1st Respondent to compute gratuity based on the last basic salary.

p. 4

Legal principles established

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  • Where a claimant relies on circulars or Gazette Notices as the foundation of an entitlement, they must be placed in evidence; the Court may apply the applicable grade allowance where the relevant circulars are not disclosed
  • A claim for reimbursable expenses must be proved by invoices or payment records
  • Gratuity is either contract based or statute based

Court orders

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  1. 1.Travel reimbursement of Kshs 109,082/- awarded against the County Government
  2. 2.Non-practice allowance of Kshs 540,000/- awarded, backdated to October 4, 2016
  3. 3.The 1st Respondent to compute and pay the Claimant 31% gratuity based on his last basic salary
  4. 4.Other heads of claim dismissed
  5. 5.Claimant awarded costs on a half scale
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007; Issue in Dispute framed by the Claimant)

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, "Ondieki v Kisii County Assembly Service Board & 2 others (Cause 87 of 2019) [2023] KEELRC 355 (KLR)", Case Analysis (2023). Cause stated as Issue in Dispute filed October 4, 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/355/eng@2023-02-15

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