Kenduywo v County Government of Uasin Gishu & another (Cause 306 of 2017) [2023] KEELRC 438 (KLR)
The bottom line
#An Employment Court in Eldoret recognized a seconded clinical officer as a county employee going forward, but refused his Kshs. 18.2 million salary claim because he proved no work was done.
What this practically means
#Executive summary
#Key legal issues
#Whether an employment relationship existed between the claimant and the respondents
The claimant was deemed an employee of the respondent from the date of judgment, but not with retrospective effect from January 1, 2014
The secondment letter dated May 15, 2014 was only delivered to the County Secretary about ten months later, was not copied to the respondent, and the claimant did not explain his whereabouts during that period. The respondents' handling of the matter was irregular, but the claimant's evidence contained gaps making a retrospective finding unsafe.
Whether the claimant was entitled to salary arrears of Kshs. 18,240,538
No order for payment of salary arrears was made
Salary is payable for work done. The respondent never allocated the claimant work because it honestly believed he was not its employee, and the claimant never accounted for where he was and what he was doing after his internship ended in January 2014. The confusion and gaps in evidence made a monetary order unsafe.
Whether the secondment lapsed at the end of the transition period under the Transition to Devolved Government Act
Raised by the respondents as a defence that the secondment lapsed on March 4, 2016, but the court did not rest its decision on this point
The respondents argued the secondment was for the transition period only, defined as ending three years after the first elections under the Constitution, and that the claimant's secondment lapsed on March 4, 2016 without regularization. The court instead resolved the claim on evidential grounds.
Legal principles established
#- Salary is payable only for work actually done
Court orders
#- 1.A declaration that the claimant, having been seconded to the respondents, shall be deemed from the date of the judgment as an employee of the respondent with rights, privileges and benefits that accrue to employees of his caliber
- 2.That if still viable and suitable, the respondent executes in favour of the claimant the transfer of service letter from the respondents to University of Kabianga as requested by the claimant
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Article 41(1) and 47 of the Constitution of Kenya 2010 invoked in the claim; ELRC first-instance employment claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenduywo v County Government of Uasin Gishu & another (Cause 306 of 2017) [2023] KEELRC 438 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/438/eng@2023-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.