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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 2523 (KLR)

Okere v County Government of Kakamega & another (Employment and Labour Relations Cause 17 of 2023) [2023] KEELRC 2523 (KLR)

Employment and Labour Relations Court
18 October 2023
JKJemimah Keli
3,981 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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A Kenyan court trimmed a retired county worker's claims: older salary and leave claims were filed too late, but other claims survive to full hearing.

What this practically means

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Executive summary

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The Claimant, a retired county employee, sued claiming unpaid basic salary, leave allowances, an erroneously deducted imprest, a medallion award, pension contributions, acting allowance as an auditor and a certificate of service. The Respondents filed a Notice of Preliminary Objection dated 30th June 2023 on two grounds: that the court lacked jurisdiction because the disputes fell within the appellate jurisdiction of the Public Service Commission under Sections 77 of the County Governments Act and 87 of the Public Service Commission Act, and that the claim was time barred under Section 90 of the Employment Act. Guided by Owners of Motor Vessel 'Lillian S', the court first addressed jurisdiction. It found on the documents that the Claimant had lodged an appeal with the Public Service Commission on 15th June 2021, obtained a decision on 9th December 2021, and applied for review, with a review decision delivered 5th December 2022; he had therefore exhausted the statutory procedures before filing suit, and this ground of the objection failed. On limitation, applying the Court of Appeal's decision in The German School Society v Ohany, the court held the continuing underpayment ceased with the last salary payment and crystallised on retirement in December 2019, so claims for unpaid salary and leave allowances had to be filed by 31st December 2020 and were statute barred. The imprest, medallion, acting allowance and certificate of service claims were within time. The court also held it lacked jurisdiction over pension claims, which should go to the Retirement Benefits Authority and the pension trust. The preliminary objection partially succeeded; each party was to bear its own costs, and the surviving claims proceed to hearing.

Key legal issues

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01

Exhaustion of the Public Service Commission dispute mechanism

Holding

The preliminary objection ground failed because the Claimant had already exhausted the PSC appeal and review procedures before filing suit

Reasoning

The court reviewed the parties' bundles and confirmed by letter dated 29th June 2021 that the Claimant filed an appeal on 15th June 2021 on underpayment issues; a decision was delivered 9th December 2021 and a review decision on 5th December 2022 communicated by letter dated 9th December 2022. Having appealed, sought review, and been dissatisfied, the Claimant properly invoked the court's original employment jurisdiction under Section 12(1) of the ELRC Act.

p. 4
02

Limitation under Section 90 of the Employment Act

Holding

Claims for underpaid salary and leave allowances tied to the wrong increment were statute barred, but claims for imprest, medallion award, acting allowance and certificate of service were within time

Reasoning

Section 90 allows three years for employment claims and twelve months after cessation for continuing injuries. The continuing underpayment ceased with the July 2019 salary payment and employment ended on retirement on 30th/31st December 2019, so suit on the continuing injury had to be filed by 31st December 2020. Claims arising from retirement (medallion, certificate of service) and imprest deductions were not time barred, the suit filed 18th November 2022 being within three years of retirement.

p. 7
03

Jurisdiction over pension claims

Holding

The court declined jurisdiction over the pension claims as the pension trust is autonomous and not a party

Reasoning

Section 12(2) of the ELRC Act lists who may lodge claims with the court; a pensioner is not among them. Pension scheme disputes between members and trustees fall outside the court's jurisdiction, the trust retaining autonomy and being regulated by the Retirement Benefits Authority. The trust was not joined as a party, so those prayers could not proceed before this court.

p. 8

Legal principles established

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  • Where a statutory dispute-resolution mechanism exists, it must be exhausted before resort to court; the Claimant complied by appealing to and seeking review by the Public Service Commission before filing suit
  • Under Section 90 of the Employment Act a continuing injury must be brought within twelve months of cessation; underpayment via a wrong increment continuing until cessation of employment crystallises on retirement
  • The Employment and Labour Relations Court lacks jurisdiction over pension disputes between scheme members and trustees where the trust is autonomous and not a party

Court orders

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  1. 1.The preliminary objection dated 30th June 2023 was partially successful: prayers (a), (b), (c) (unpaid basic salary, unpaid leave allowance and leave allowance on house allowance) are statute barred
  2. 2.The claims not statute barred and within the court's jurisdiction proceed, namely imprest erroneously deducted (Kes. 77,939.30), Medallion award (Kes 50,000), unpaid Acting Allowance (Kes. 1,545,000) and Certificate of Service
  3. 3.The court lacks jurisdiction over the pension claims, which are to be handled by the Retirement Benefits Authority and the pension trust
  4. 4.Each party to bear own costs in the preliminary objection
  5. 5.Mention date of 9th November 2023 to be served for parties to take a hearing date before the Judge

Authorities

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Legislation

  • County Governments ActSections 2, 59(j), 77
  • Public Service Commission Act, No. 10 of 2017Sections 86, 87(2), 88
  • Employment Act, 2007Section 90
  • Employment and Labour Relations Court Act, Cap 234BSections 12(1), 12(2)
  • Limitation of Actions ActSection 4(1)

Cases cited (9)

  • Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    (1989) eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited and 2 others
    Application No. 2 of 2011 (2012) eKLR
  • Hussein Wanyama Mulebo & 5 others v County Public Service Board & 2 others
    (2022) eKLR
  • Ismael Noo Onyango & Another v Siaya County Public Service Board & Another
    (2018) eKLR
  • Secretary County Public Service Board and Another v Hulbhai Gedi Abdulla
    (2017) eKLR
  • National Assembly v James Njenga Karume
    (1992) eKLR
  • George Hiram Ndirangu v Equity Bank Limited
    (2015) eKLR
  • The German School Society & another v Ohany & another
    (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR) (24 July 2023)
  • Balakrishna S.P. Waghmare v Shree Dhyaneshwar Maharaj Sansthan
    AIR 1959 SC 798
Jurisdiction invoked
Section 12(1) of the Employment and Labour Relations Court Act, Cap 234B

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Okere v County Government of Kakamega & another (Employment and Labour Relations Cause 17 of 2023) [2023] KEELRC 2523 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2523/eng@2023-10-18

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