Ungu v County Government of Meru (Cause E031 of 2021) [2024] KEELRC 1184 (KLR)
The bottom line
#A former Meru County Public Service Board member lost her discrimination and pay claims in Kenya's Employment Court after her own letters proved she chose part-time service.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant served full time or part time
The claimant voluntarily elected part-time service effective 1st April 2014 by her letters of 17th February 2014 and 22nd October 2014; no approval was required.
The court construed section 58(4)(b) of the County Governments Act, holding that 'may' gives members a deliberate choice to serve part-time with no prescribed procedure or consent requirement. The claimant's own written communications confirmed part-time status, and s.10(5) of the Employment Act, requiring employer consultation, does not apply where the change is instigated by the employee herself.
Whether the claimant was discriminated against
No discrimination was proved; the claimant failed to identify a real comparator or show differential treatment without justification.
Applying the Supreme Court's definition in Gichuru and Article 27 of the Constitution, the court held the burden lay on the claimant to prove differential treatment without objective justification and to show a real comparator. Her complaints (motor vehicle withdrawal, unpaid gratuity, loan denial, etc.) were at best claims for outstanding benefits, not discrimination; the motor vehicle was a privilege not provided in her contract.
Whether the monetary claims (underpayment, allowances, gratuity, leave, imprests) were due
All monetary claims failed; payments were made or rectified, and part-time members were not entitled to gratuity or leave allowance under the applicable SRC circulars.
The court examined the SRC circulars and payment records, finding airtime, commuter allowance, annual leave and imprest reimbursements were documented as paid. The August-December 2017 underpayment as acting chairperson was rectified by arrears of Kshs. 64,516.13 in January 2018. The December 2017 SRC circular on gratuity did not apply to the claimant, who was already in office when it came into force.
Whether the respondent's counterclaim for refund of accommodation allowance was merited
The counterclaim failed; the respondent did not prove the claimant was a resident of Meru during her term of office.
The claimant maintained she resided in Nakuru and travelled to Meru for meetings, renting a room there only for convenience. The court found no sufficient evidence of relocation to Meru, holding that a rented room or hotel for meeting attendance was lawful and did not disentitle her to the accommodation allowance.
Legal principles established
#- Discrimination occurs where there is differential treatment without any objective and reasonable justification, and the party alleging it must prove a real comparator.
- Section 58(4)(b) of the County Governments Act permits a member of a County Public Service Board to elect to serve on part-time basis without consent of the appointing authority, and s.10(5) of the Employment Act does not apply where the change of terms is instigated by the employee.
Court orders
#- 1.Dismissal of the claimant's suit with no order as to costs.
- 2.Dismissal of the respondent's counterclaim with no order as to costs.
- 3.A certificate of service to issue to the claimant.
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the ELRC (claim of unfair treatment, discrimination and unpaid employment benefits under Articles 27 and 47 of the Constitution and the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ungu v County Government of Meru (Cause E031 of 2021) [2024] KEELRC 1184 (KLR)", Case Analysis (2024). Memorandum of Claim dated 22nd September 2021 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1184/eng@2024-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.