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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 1251 (KLR)

Ngurusi v County Government of Marsabit (Employment and Labour Relations Petition E009 of 2023) [2024] KEELRC 1251 (KLR)

Employment and Labour Relations Court
13 May 2024
OMOnesmus N Makau
1,353 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan county government was ordered to pay a former contract employee over Kshs 1.7 million for withholding his gratuity, which the court ruled was discrimination.

What this practically means

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Executive summary

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The petitioner, formerly employed by the respondent as a Liaison Officer from September 1, 2013 to September 30, 2017 under a fixed term contract, petitioned the Employment and Labour Relations Court at Nyeri alleging discrimination in the non-payment of his contractual gratuity of 31% of annual basic salary, contrary to articles 2, 3, 22, 27, 41 and 48 of the Constitution. He sought declarations of discrimination and violation of rights, payment of gratuity, interest, general damages for the constitutional violation, a certificate of service, interest and costs. The petition was unopposed, the respondent never entering appearance despite service, and was canvassed by written submissions. The court framed three issues: competence of the petition, violation of the freedom from discrimination, and entitlement to reliefs. Applying the Anarita Karimi Njeru threshold, the court found the petition properly pleaded. On the evidence, including the employment contract and a letter from the respondent's County Secretary acknowledging the claim, the court found uncontroverted proof that the petitioner was treated differently from other contract employees without justification, amounting to discrimination under article 27. The court distinguished Ol Pajeta Ranching Limited v David Wanjau Muhoro and awarded Kshs. 1,000,000.00 as general damages for discrimination rather than the Kshs. 2,000,000.00 sought, and awarded the uncontroverted gratuity of Kshs. 779,470.20, holding that the failure or delay to pay gratuity also constituted breach of contract. Judgment was entered for a total of Kshs. 1,779,470.20, subject to statutory deductions, plus costs and interest at court rates from the date of judgment. The claims for a certificate of service and the specific interest figure were not addressed in the final orders. The judgment was delivered via Teams video conferencing with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether the Petition meets the competence threshold

Holding

The petition meets the Anarita Karimi Njeru competence threshold as it particularises the violation, the constitutional provisions infringed and the manner of infringement

Reasoning

The court applied the Anarita Karimi Njeru test, requiring precision in pleading constitutional violations. It confirmed that the petition particularised the discrimination complaint contrary to article 27 in paragraph 10 of the petition, identifying the provisions infringed and the manner of infringement, and therefore found the petition competent.

p. 3
02

Whether the petitioner's freedom from discrimination was violated

Holding

Yes - the respondent treated the petitioner differently from other contract employees by failing to pay his gratuity, and the differential treatment was not justified

Reasoning

The petitioner proved a fixed term contract entitling him to gratuity at 31% of annual basic salary, exhibited the contract and an acknowledgement letter by the respondent's County Secretary, and the respondent never entered appearance to controvert the evidence. The court found the differential treatment unjustified, hence discriminatory under article 27.

p. 3
03

Whether the petitioner is entitled to the reliefs sought

Holding

Partially - general damages for discrimination of Kshs. 1,000,000.00 (not the Kshs. 2,000,000.00 sought) and gratuity of Kshs. 779,470.20 as computed

Reasoning

Guided by Ol Pajeta Ranching Limited v David Wanjau Muhoro, where the Court of Appeal awarded Kshs. 7,500,000 for racial discrimination in salary payment, and considering the continued denial of the right, the court awarded Kshs. 1,000,000 general damages. The uncontroverted gratuity claim of Kshs. 779,470.20 was awarded as prayed, its non-payment also constituting breach of contract.

p. 4

Legal principles established

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  • A constitutional petition must set out with a reasonable degree of precision the complaint, the provision said to be infringed, and the manner of infringement (Anarita Karimi Njeru threshold)
  • Uncontroverted evidence, where a respondent fails to enter appearance despite service, may prove differential treatment that is unjustified and therefore discriminatory
  • Failure or delay to pay contractual gratuity amounts to breach of the contract of service and grounds for an award as prayed

Court orders

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  1. 1.General damages for discrimination of Kshs. 1,000,000.00
  2. 2.Gratuity of Kshs. 779,470.20
  3. 3.Total judgment of Kshs. 1,779,470.20 subject to statutory deductions
  4. 4.Costs of the petition awarded to the petitioner
  5. 5.Interest at court rates from the date of the judgment
Jurisdiction invoked
Articles 2, 3, 22, 27, 41 and 48 of the Constitution of Kenya, 2010

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, "Ngurusi v County Government of Marsabit (Employment and Labour Relations Petition E009 of 2023) [2024] KEELRC 1251 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1251/eng@2024-05-13

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