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ELRCPartially AllowedNot stated in the extract provided (Memorandum of Claim dated 1st July 2021, Nyeri ELRC)· [2023] KEELRC 2862 (KLR)

Kanga v County Public Service Board of Tharaka Nithi County & another (Cause E022 of 2021) [2023] KEELRC 2862 (KLR)

Employment and Labour Relations Court
10 November 2023
3,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A county worker sent home on compulsory leave won full unpaid salaries and gratuity totalling over Kshs 5.4 million, while his employer's fraud counterclaim failed.

What this practically means

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Executive summary

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The claimant, former Secretary to the Tharaka Nithi County Public Service Board, sued for unpaid salaries and allowances from 11th September 2017 (when sent on compulsory leave over police investigations) to 13th August 2019 (expiry of his six-year contract), plus service gratuity at 31% of annual basic pay. The respondents denied liability, asserting the claimant never worked during the period, and counterclaimed for Kshs. 11,584,402 alleging he fraudulently introduced 24 ghost workers into the county payroll, a claim they said survived his acquittal in Chuka Criminal Case No. 789 of 2019. The court framed three issues: entitlement to salary, entitlement to gratuity, and the merits of the counterclaim. On salary, the court found the compulsory leave had been quashed in Nyeri ELRC JR No. 13 of 2017, yet the employer refused to reinstate the claimant; being entitled to pay where the employer denies work, and having been acquitted of criminal charges, he was awarded Kshs. 4,139,885 for 23 months at the pleaded gross pay. On gratuity, the contract provided for gratuity on completion, the contract lapsed by effluxion of time, and two years' gratuity of Kshs. 1,337,674.80 was awarded as pleaded. On the counterclaim, the court held the burden of proof remained on the respondents even without a defence; no Board member testified, no investigative report was produced, and the audit recommendations were never shown to have been pursued. The respondents failed to prove the ghost-worker allegations or link the claimant to the payroll. Judgment was entered for the claimant with costs and interest from filing, subject to statutory deductions; the counterclaim was dismissed.

Key legal issues

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01

Entitlement to salary for the compulsory leave period

Holding

Claimant entitled to unpaid salaries from 11th September 2017 to 13th August 2019

Reasoning

The claimant was sent on compulsory leave, successfully quashed the letter in judicial review but was never allowed to resume work. The employer's denial of work was unlawful, the claimant was acquitted of criminal charges, and the contract lapsed by effluxion of time. Withholding salary amounted to mistreatment contrary to Article 236. Award calculated at pleaded gross pay for 23 months.

p. 6
02

Entitlement to service gratuity

Holding

Claimant entitled to gratuity at 31% of annual basic pay as per contract

Reasoning

The written contract provided for gratuity on completion. The claimant neither resigned nor was terminated; the contract expired by notice dated 10th June 2019. Although entitled to six years' gratuity, the claimant only prayed for two years and the court awarded only what was pleaded.

p. 7
03

Merits of the respondents' counterclaim for Kshs. 11,854,402

Holding

Counterclaim dismissed for failure of proof

Reasoning

The respondents bore the burden of proving fraud on a balance of probabilities even without a defence. No Board member testified; no conclusive investigative report was produced; the criminal charge ended in acquittal after four years. The respondents failed to link the claimant to the payroll additions or to prove the appointments lacked Board approval.

p. 7

Legal principles established

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  • An employee wrongfully excluded from work by the employer is entitled to pay for the period even if no duties were performed.
  • Public officers may not be subjected to disciplinary action without due process of law under Article 236 of the Constitution.
  • Even an unopposed counterclaim must be proved on a balance of probabilities; acquittal on related criminal charges and absence of an investigative report are fatal.

Court orders

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  1. 1.Payment of all the unpaid salaries and allowances for the months starting 11th September, 2017 to 13th August 2019 totalling to a sum of Kshs. 4,139,885/=
  2. 2.Payment of a sum of Kshs. 1,337,674.80 being the service gratuity at the rate of 31% of annual basic pay for the two years leading to the expiry of the contract.
  3. 3.Costs of the suit plus interest at court rate from the date of filing suit.
  4. 4.The award is subject to statutory payments.
Jurisdiction invoked
Article 162(2) of the Constitution (ELRC employment and labour relations jurisdiction - implied by court, not expressly quoted)

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, "Kanga v County Public Service Board of Tharaka Nithi County & another (Cause E022 of 2021) [2023] KEELRC 2862 (KLR)", Case Analysis (2023). Not stated in the extract provided (Memorandum of Claim dated 1st July 2021, Nyeri ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2862/eng@2023-11-10

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