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ELRCDismissedNot stated in judgment (ELRC Cause, Eldoret)· [2023] KEELRC 2580 (KLR)

Kutto v County Government of Uasin Gishu & another (Cause 46 of 2020) [2023] KEELRC 2580 (KLR)

Employment and Labour Relations Court
5 October 2023
MOM. Onyango
3,180 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Employment Court ruled that a final warning counts as punishment, so an employee found culpable cannot reclaim salary forfeited while interdicted.

What this practically means

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Executive summary

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The Claimant, a senior nurse employed by the County Government of Uasin Gishu and stationed at Kapteldon Sub-County Hospital, was issued a show cause letter in January 2019 over alleged abscondment of duty and neglect of a client in labour. She was interdicted on half pay on 7th February 2019, attended a disciplinary hearing on 10th July 2019, and by a letter dated 28th July 2020 the interdiction was lifted but she was required to forfeit the salary withheld during the interdiction and was served with a final warning. She sued seeking Kshs 1,421,280 in withheld salary arrears, Kshs 45,000 as 'corona allowance' allegedly paid to colleagues but not her, a declaration that the withholding and discrimination were unfair and unlawful, and costs. The Respondents maintained that she was found culpable, punished with a final warning and forfeiture, and that the delay in communicating the outcome was occasioned by the seriousness of the allegations and the Covid-19 pandemic. The court framed three issues: whether the delay in communicating the disciplinary outcome was justified; whether the forfeiture of withheld salary was justified; and what orders should issue. The court held the delay reasonable given the pandemic, applied Grace Gacheru Muriithi v Kenya Literature Bureau to hold that a warning is a form of punishment precluding restoration of withheld salary, and declined the corona allowance claim for lack of proof. The entire claim was dismissed with no order as to costs owing to the subsisting employment relationship.

Key legal issues

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01

Whether the one-year delay in communicating the disciplinary outcome was justified

Holding

The delay was justified, the court taking judicial notice of the disruption caused by the Covid-19 pandemic

Reasoning

Under Clause K3(4), disciplinary cases should be finalized within six months, meaning the outcome was due by 10th February 2020. The court took judicial notice of the disruption to business worldwide caused by the Corona Virus pandemic during that period and held the Respondents' explanation reasonable in the circumstances.

p. 6
02

Whether forfeiture of salary withheld during interdiction was justified despite lifting of the interdiction

Holding

Forfeiture was justified because the Claimant was found culpable and punished with a final warning, and thus was not exonerated

Reasoning

Restoration of withheld benefits applies only where an officer is neither dismissed nor otherwise punished. The letter of 28th July 2020 gave a final warning following findings of gross misconduct. Since a warning is a form of punishment, the Claimant was not exonerated and could not claim a legitimate expectation to the withheld salary, consistent with Grace Gacheru Muriithi v Kenya Literature Bureau.

p. 7
03

Whether the Claimant was discriminated against in the payment of the 'corona allowance'

Holding

The claim failed for want of proof of the allowance and of discrimination

Reasoning

The court found no evidence tabled establishing the existence of the 'corona allowance' or that colleagues were paid it to the Claimant's exclusion, so the claim was declined for lack of particulars and proof.

p. 7

Legal principles established

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  • A warning is a disciplinary measure and therefore a form of punishment; an employee punished at the end of disciplinary proceedings is not entitled to restoration of salary withheld during interdiction
  • Whether an employee on interdiction or suspension is paid for that period depends on the outcome of the disciplinary proceedings

Court orders

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  1. 1.The Claimant's suit is dismissed in its entirety
  2. 2.No orders as to costs, in view of the subsisting employment relationship between the parties

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41 and 47
  • Public Service Commission Actsection 70(3)
  • County Governments Actsection 59(1)(c)
  • Human Resource Policies and Procedures Manual for the Public Service, 2016Clauses K3(4) and K6(4)
  • County Public Service Human Resources Manual, 2013Clause D31(1)(g) and clause 32.4

Cases cited (6)

  • Kenya Union of Commercial Food and Allied Workers vs MEC Sacco Society Limited
    Cause No. 167 of 2014
  • Davis Gitonga vs Judicial Service Commission
    Petition No. 116 of 2018, Malindi Cause No. E008 of 2021
  • Benjamin Menza Kirimi vs Kilifi County Public Service Board & Another
    (2021) eKLR
  • Banking Insurance and Finance Union of Kenya vs Kenya Commercial Bank Limited
    (2015) eKLR
  • Boniface Momanyi Nyachae v Kenya Orient Insurance Ltd
    (2018) eKLR
  • Grace Gacheru Muriithi –Versus- Kenya Literature Bureau
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (claim for unfair labour practices, withheld salary and discrimination in employment benefits)

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, "Kutto v County Government of Uasin Gishu & another (Cause 46 of 2020) [2023] KEELRC 2580 (KLR)", Case Analysis (2023). Not stated in judgment (ELRC Cause, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2580/eng@2023-10-05

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