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ELRCStruck OutEmployment and Labour Relations Cause (number not stated in judgment)· [2023] KEELRC 1463 (KLR)

Moturi v National Social Security Fund (Employment and Labour Relations Cause E6518 of 2020) [2023] KEELRC 1463 (KLR)

Employment and Labour Relations Court
8 June 2023
MNMathews N. Nduma
3,985 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Waiting too long to sue over an acting appointment cost this former NSSF manager his Kshs 10.2 million claim — sue while you're still employed.

What this practically means

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Executive summary

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The claimant, a former employee of the National Social Security Fund, sued on December 3, 2020 seeking a declaration that he became the substantive Finance Manager after acting for over six months from December 1, 2013, payment of Kshs 10,200,111 in unpaid acting allowance, pension contributions, general damages, costs and interest. He pleaded discrimination in being paid 15-20% acting allowance instead of the differential between grades, and non-payment of acting allowance while on compulsory leave from June 6, 2018 to November 9, 2018 following a Presidential proclamation on fresh vetting. The respondent, through its HR Manager RW1 Caroline Onyango, denied discrimination, contending that its own Human Resource Manual placed no time limit on acting periods, that the Public Service Commission's six-month rule did not apply to NSSF staff, and that recruitment to substantive positions was frustrated by the COTU injunction of February 13, 2015. On its own motion the court first examined jurisdiction, invoking the Lilian 'S' Case. It framed three issues: limitation, proof of the claim, and reliefs. The court held the respondent bound by its HR Manual and acknowledged the superior-court jurisprudence that inordinate acting periods constitute unfair labour practice under Article 41, but held that the claimant should have sued while the acting position persisted to benefit from the continuous-injury proviso to Section 90 of the Employment Act. Employment having ceased on June 30, 2020 before the December 2020 filing, the main claim was time-barred and was struck out for want of jurisdiction. The compulsory-leave allowance claim, though not time-barred, was dismissed because the claimant did not render service and another officer was paid for the same position. Each party was ordered to bear its own costs.

Key legal issues

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01

Limitation of actions under Section 90 of the Employment Act

Holding

The claim for substantive appointment and unpaid acting allowance was time-barred; the cause of action arose in 2014, the suit was filed in December 2020 after employment ceased, so the continuous-injury proviso did not apply.

Reasoning

The cause of action accrued six months after acting commenced on December 1, 2013, i.e. by May 1, 2014. The three-year limitation expired May 1, 2017. Suit was filed December 3/8, 2020 after the claimant had retired on June 30, 2020, so the injury was no longer continuing.

p. 8
02

Whether the claimant was entitled to acting allowance while on compulsory leave

Holding

No. The claimant was not rendering service and another officer was paid acting allowance for the same position during that period.

Reasoning

The court accepted RW1's evidence that only one officer can be paid acting allowance for a position at a time, and the claimant did not discharge the burden of proving entitlement to an allowance for a period when he did not work.

p. 8
03

Whether the respondent was bound by its Human Resource Manual and whether prolonged acting was unfair labour practice

Holding

The respondent is bound by its own Human Resource Manual, and superior courts have held inordinate acting periods to be unfair labour practices under Article 41; however, the limitation bar defeated the claim.

Reasoning

The court adopted the Oyatsi reasoning that an employer cannot cherry-pick from its HR Manual, but held that the claimant was required to sue while the acting position persisted to come within the continuous injury proviso to Section 90.

p. 7

Legal principles established

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  • An employee held in an acting position beyond six months must sue while the position persists to benefit from the continuous-injury proviso in Section 90 of the Employment Act; once employment has ceased, the three-year limitation applies.
  • An employer is bound by its own Human Resource Policies and Procedures Manual, which is an employment policy or practice recognized under Section 5(7)(c) of the Employment Act, 2007.
  • Prolonged acting appointments without substantive confirmation amount to unfair labour practice in violation of Article 41 of the Constitution.

Court orders

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  1. 1.Main claim for substantive appointment as Finance Manager and payment of unpaid acting allowance struck out for want of jurisdiction (time-barred)
  2. 2.Specific claim for acting allowance for the compulsory leave period (June 6, 2018 to November 9, 2018) dismissed
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 41(1), 41(2)(a), 41(2)(b)
  • Constitution of Kenya, 2010Article 27(1), 27(2), (3) and 4
  • Constitution of Kenya, 2010Article 21(3)(e)
  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 5(5), 5(7)(c)
  • Limitation of Actions ActSection 4(1)
  • Human Resource Policies and Procedure Manual for Public ServiceClause C.14(1) - Acting Allowance
  • NSSF Human Resource Manual, 2011Regulation 3.1; Chapter 3 Clause 3(g)

Cases cited (6)

  • Silas Kaumbuthu Mbutura –vs- Meru Central Dairy Co-operative Union Limited
    [2015] eKLR
  • Steve –vs- Kenya Ports Authority
    Cause No E008 of 2020) [2022] KEELRC 1471 (KLR)
  • Ednah Cherono Maiywa -vs- University of Nairobi Enterprises and Services Limited
    [2020] eKLR
  • Oyatsi -vs- Judicial Service Commission
    (Petition No E111 of 2021) [2022] KEELRC 3 (KLR)
  • Heritage Insurance Company Limited –vs- Christopher Onyango & 23 Others
    Civil Appeal No 114 of 2016 [2018] eKLR
  • Central Organisation of Trade Unions (COTU) -vs- National Social Security Fund (NSSF)
    Employment and Labour Relations Cause No 15 of 2015
Jurisdiction invoked
Jurisdiction under the Employment and Labour Relations Court's statutory mandate; court suo moto considered jurisdiction per Lilian 'S' Case and Section 90 of the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Moturi v National Social Security Fund (Employment and Labour Relations Cause E6518 of 2020) [2023] KEELRC 1463 (KLR)", Case Analysis (2023). Employment and Labour Relations Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1463/eng@2023-06-08

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