Gathondeka v Attorney General & another (Cause 983 of 2014) [2023] KEELRC 859 (KLR)
The bottom line
#A Kenyan court ruled that a state employer cut an employee's salary without valid proof of wrongdoing, and must pay back the money plus costs.
What this practically means
#Executive summary
#Key legal issues
#Authenticity of the certificate justifying the salary reduction
The 1st respondent failed to prove the certificate was fake; the evidence on the certificate number was confused and unverified, so the salary cut was unjustified
The NITA officer's affidavit referred to certificate No.86570 belonging to one John K. Maina, but that number matched none of the certificates in issue (885570, 565570, 865570). The officer never testified to correct or clarify, and deposed six years after the fact. The court therefore held the employer had no valid or verified grounds for slashing the salary.
Unilateral salary reduction and demotion
The salary reduction and demotion were unfair and in breach of sections 10, 17 and 19 of the Employment Act
Section 17 requires payment of full salary; section 19 prescribes the only permissible deductions; section 10(5) requires consultation before changing terms. The employer cut pay without consultation, recovered unexplained sums, and gave no justification for the demotion, hence unfair treatment.
Burden of proving reasons for adverse employment action
Under section 43(1) of the Employment Act, the employer bears the burden of proving the reason for termination or adverse action; failure renders the action unfair
The 1st respondent did not terminate the claimant but unilaterally deducted his salary; it was the employer who had to prove valid reasons for the disciplinary action. Having failed to do so, and given the claimant's good performance evaluation, the action was unfair.
Exhaustion of internal mechanisms
The claimant was not barred from approaching the court; a decision had already been taken and his letter to the Ministry went unanswered
The respondents argued the claimant should have appealed to the Minister under Regulation 18 of the Industrial Training Rules and exhausted internal mechanisms. The court held that the decision to reduce salary had already been made and the claimant's letter of 23rd August 2016 received no response, so court redress was available.
Legal principles established
#- An employer must not unilaterally reduce an employee's terms of employment to the employee's disadvantage without consultation or consent
- Where an employer takes adverse action against an employee, the employer bears the burden of proving valid reasons for that action
- Demotion without consultation fundamentally alters conditions of employment and constitutes double punishment
- There is no mandatory provision barring an employee from seeking legal redress in court against an employer
Court orders
#- 1.Kshs.121,228.00 for underpaid salary from April 2014 to December 2014 and January 2015 to March 2015
- 2.Kshs.95,040.00 for underpaid salary from April 2015 to April 2016
- 3.Kshs.143,040.00 for underpaid salary from May 2016 to April 2017
- 4.Kshs.23,840.00 for underpayment of salary for May and June 2017
- 5.Kshs.228,000.00 house allowance (Kshs.6,000 x 38 months)
- 6.The 1st respondent and the Claimant to agree on the retirement benefits due and report to Court by 20th April 2023
- 7.Interest on amounts awarded at Court rates from date of judgment until full payment
- 8.Costs of the claim awarded to the Claimant
- 9.Case to be mentioned on 20th April 2023 to confirm retirement benefits
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution (claim for unfair treatment, salary reduction and retirement benefits in employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathondeka v Attorney General & another (Cause 983 of 2014) [2023] KEELRC 859 (KLR)", Case Analysis (2023). Cause No 983 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/859/eng@2023-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.