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ELRCPartially AllowedPetition dated 4th July 2023· [2024] KEELRC 211 (KLR)

Eliakim v Kenya Literature Bureau & another (Petition E132 of 2023) [2024] KEELRC 211 (KLR)

Employment and Labour Relations Court
9 February 2024
AMAnna Ngibuini Mwaure
2,367 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an employee's challenge to salary deductions for absence, ruling both sides failed to prove their case, but ordered her unpaid leave allowance be paid.

What this practically means

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Executive summary

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The petitioner, a long-serving employee of Kenya Literature Bureau who suffered from knee osteoarthritis, challenged by constitutional petition a surcharge of Kshs 307,337.34 imposed after an audit allegedly showed she absented herself from duty for 203 days across 2021/2022 and 2022/2023. She sought declarations that the surcharge letter was unconstitutional, certiorari to quash it, an injunction against further deductions, refunds of Kshs 100,000 deducted, an order compelling the respondent to confirm her disability status to the Kenya Revenue Authority, and payment of Kshs 16,667 in 2023 leave allowance. The respondent maintained the audit was based on attendance registers, that her sick sheets were unauthorised and inconsistent, that she had since retired on 7th July 2023 with full dues paid, and that the disability certificate was hers to present to the tax authorities. The court affirmed that absence without authority attracts surcharge under section 19 of the Employment Act and the employer's HR manual, which forms part of the employment contract. However, it found the evidence on both sides deficient: the respondent produced no audit records, and the petitioner's sick sheets (about 60 days) bore no employer authorisation. Holding that no constitutional violation was proved and that the matter should have been a ordinary claim with viva voce evidence, the court dismissed the petition, allowed the respondent to retain amounts recovered, denied refunds, but ordered payment of the Kshs 16,667 leave allowance with interest. Each party was to bear its own costs.

Key legal issues

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01

Whether the surcharge for alleged absence from duty was lawful

Holding

While absence without authority attracts surcharge under the Employment Act and the employer's HR manual, neither party adduced sufficient data to prove the days absent or the amounts surcharged, so the court could not grant refunds or uphold the surcharge

Reasoning

The court accepted that absence without authority justifies deduction under section 19(10)(c) of the Employment Act and the HR manual, which forms part of the employment contract. However, the respondent produced no supporting documents for the audit showing 203 days' absence, and the petitioner's sick sheets covering about 60 days bore no employer authorisation. In the evidential vacuum the court let the respondent retain amounts recovered but denied the petitioner refunds, while ordering payment of the 2023 leave allowance.

p. 4
02

Whether a constitutional petition was the proper vehicle for the claim

Holding

No constitutional violation was proved; the dispute should have been instituted as an ordinary employment claim enabling viva voce evidence

Reasoning

The court held that the dispute over absence, surcharge and deductions was essentially an employment matter, not a constitutional one. Without proof of discrimination or rights violations, the petition framework was inappropriate because affidavit evidence could not resolve the factual conflicts between the attendance registers and the sick sheets. A plain claim would have allowed the parties to testify and clarify their documents.

p. 4
03

Entitlement to 2023 leave allowance

Holding

The petitioner is entitled to Kshs 16,667 being her 2023 leave allowance if not already paid, with interest from the date of judgment

Reasoning

Although the court dismissed the petition, it carved out the leave allowance of Kshs 16,667 withheld for 2023, ordering payment if not already paid, with interest from the date of judgment until payment in full.

p. 5

Legal principles established

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  • An employer may deduct from an employee's wages for absence from duty without leave or lawful cause, as provided under section 19(10)(c) of the Employment Act
  • An employee who absents himself from employment without authority cannot justify the absence later by merely producing a sick sheet; the employer's human resource manual forms part of the employment contract and must be adhered to

Court orders

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  1. 1.Finding that both parties failed to supply sufficient data to prove the days the petitioner absented herself from work or that she was on authorised sick leave for the 203 days
  2. 2.Finding that neither party provided evidence of the amounts surcharged from the petitioner as at the time of her retirement
  3. 3.The respondent to retain whatever amounts it has recovered from the petitioner; the petitioner not entitled to any refunds
  4. 4.Declaration that the petition does not involve constitutional violation of human rights and should have been filed as a simple claim
  5. 5.The prayer for a disability tax exemption certificate is overtaken by events; petitioner at liberty to explore other means after retirement
  6. 6.The petitioner's prayers dismissed save that she will be paid Kshs 16,667 being her 2023 leave allowance if not already paid, with interest from date of judgment until payment
  7. 7.Each party to meet their respective costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 20(1), 25(c), 27, 28, 41, 43(1), 47, 48, 50, 159(2)(d), 232
  • Employment ActSection 19(1)(c) / 19(10)(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Leadership and Integrity Act
  • Public Ethics Act
  • Kenya Literature Bureau Human Resource Policy and Procedures Manual 2018Clause 4.15

Cases cited (1)

  • Daniel Mutuko Njuguna v Kenya Institute of Mass Communication
    [2021] eKLR
Jurisdiction invoked
Article 41 of the Constitution of Kenya 2010 (fair labour practices)

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, "Eliakim v Kenya Literature Bureau & another (Petition E132 of 2023) [2024] KEELRC 211 (KLR)", Case Analysis (2024). Petition dated 4th July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/211/eng@2024-02-09

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