Ngusu v BOM, Kyome Girls Secodnary School (Cause 2560 of 2016) [2024] KEELRC 1146 (KLR)
The bottom line
#A Kenyan court awarded a former school laboratory assistant Kshs. 208,948 for underpayment and house allowance, but limited her claim to three years before she resigned.
What this practically means
#Executive summary
#Key legal issues
#Limitation under section 90 of the Employment Act
The court applied the three-year limitation period back from termination, forfeiting claims for earlier years.
The court accepted that section 90 restricts recovery for continuing injuries to the period within three years of the cause ceasing. Since the Claimant resigned in September 2014, only underpayment and house allowance falling within the preceding three years were recoverable; claims relating to her earlier roles as librarian and storekeeper were time-barred.
Unfair termination compensation
No compensation for unfair labour practices was awardable because the Claimant resigned voluntarily.
The court found that the Claimant gave notice of termination and resigned to take up better prospects elsewhere. Without an unlawful termination by the Respondent, the head of 12 months' compensation for unfair termination or unfair labour practices could not stand, notwithstanding her claims of underpayment and exploitation.
House allowance
The Claimant was entitled to house allowance at 15% of basic pay, limited to 36 months, totalling Kshs. 61,398/-.
Applying the principle that house allowance is payable as a separate item at 15% of basic pay unless expressly consolidated, the court awarded Kshs. 1,750.50 per month for the 36 months within the limitation period, aligned to the minimum wage findings on underpayment.
Underpayment as laboratory assistant
The Claimant was underpaid by Kshs. 4,970/- per month; the recoverable underpayment for three years was Kshs. 178,920/-, later adjusted in the final award.
Comparing her salary of Kshs. 6,400/- against the applicable minimum basic wage, the court found systematic underpayment. Recovery was limited to the three-year window, yielding Kshs. 178,920/-, subject to set-off of the notice pay and counterclaim costs in the final computation of Kshs. 147,550/-.
Respondent's counterclaim for one month's salary in lieu of notice
The counterclaim succeeded; the notice pay of Kshs. 6,400/- plus costs of Kshs. 20,000/- was set off against the Claimant's award.
The letter of appointment provided for termination by one month's notice or payment in lieu. The Claimant directed that the notice pay be deducted from her terminal dues, so the court netted the amount, together with assessed counterclaim costs of Kshs. 20,000/-, off the award rather than ordering separate payment, and made no separate award of interest.
Legal principles established
#- Under section 90 of the Employment Act, claims for underpayment and allied employment entitlements are recoverable only for the three years preceding termination of employment.
- An employee who resigns voluntarily cannot succeed on a claim for unfair termination compensation.
- House allowance is payable at 15% of basic pay unless expressly consolidated, and such claims are similarly limited by section 90.
Court orders
#- 1.Kshs. 147,550/- awarded to the Claimant, being the sum for underpayment less one month's salary as notice and costs of Kshs. 20,000/- for the counterclaim
- 2.Kshs. 61,398/- awarded as unpaid house allowance
- 3.Costs of the suit to the Claimant
- 4.Interest at court rates on the sums awarded from the date of judgment till payment in full
- 5.No award of interest as the counterclaim sum is netted off the award; no award under the head of unpaid salary for the positions of librarian and storekeeper
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, No. 11 of 2007 (employment and labour relations cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngusu v BOM, Kyome Girls Secodnary School (Cause 2560 of 2016) [2024] KEELRC 1146 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1146/eng@2024-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.