Havelock (As the legal administrator and personal representative of Hon Justice Jonathan Bowen Havelock (Rtd) - Deceased) v Judicial Service Commission of Kenya & another (Cause 1273 of 2017) [2024] KEELRC 153 (KLR)

The respondents were unclear how the gratuity figure was computed, with the 2nd Respondent's witness stating she was not competent to comment. But the claimant equally could not explain how the claimed shortfall was calculated. Since the burden of proof lay on the claimant, the court found the head unproved.

The Judge's appointment letter provided a transport allowance of Kshs. 122,000 which he received for using his own vehicle. After the SRC circular consolidating salaries, the allowance was withdrawn though the Judge kept using his personal vehicle, disadvantaging him contrary to Article 160(4) of the Constitution and contrary to Section 10(5) of the Employment Act. A legitimate expectation created at the highest level of the Judiciary was also established.

Reimbursing the premium equivalent would materially depart from the established terms of service and present accounting difficulties, since group medical premiums are priced on economies of scale. No policy decision authorised such payment and no law supported the proposition; the reimbursement letter had no legal or policy basis.

Kenya has ratified the ILO Holidays with Pay Convention No. 132 which is part of Kenyan law by Article 2(6) of the Constitution. Paid holiday includes full pay inclusive of allowances; there is no justification for paying only basic pay when leave is commuted into cash, which the court found violated the Convention.

Former Chief Justice Mutunga disowned the letter purporting to re-appoint the Judge post retirement. Discussions on consultancy engagement were inconclusive and no written offer issued. Work done post retirement did not create an employment relationship absent documentation with clear terms of engagement.