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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 1371 (KLR)

Ng’ati v Sports, Arts & Social Development Fund Oversight Board & 3 others (Employment and Labour Relations Cause E6590 of 2020) [2024] KEELRC 1371 (KLR)

Employment and Labour Relations Court
6 June 2024
2,771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A former Sports Fund legal officer won Kshs 659,600 in unpaid allowances, but the court rejected his bigger pension and discrimination claims for lack of proof.

What this practically means

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Executive summary

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The claimant, formerly Corporation Secretary of the 1st respondent (successor to the defunct National Sports Fund), was employed on permanent and pensionable terms at a gross monthly salary of Kshs 327,700/=, commenced work on 7/4/2017, and resigned voluntarily by letter dated 17/7/2019 after serving approximately 31 months. He claimed Kshs 5,024,750/= comprising non-practice and prosecutorial allowances, pension benefits, subsistence and travel reimbursements for an official trip to the SOYA Awards in Mombasa, and general, exemplary and aggravated damages for alleged discrimination, abuse and harassment. The respondent contended that the claimant's contract did not provide for the allowances, that all pension dues were paid after the winding-up transfer to ICEA was finalized in 2021, and that travel claims were settled. The court framed two issues: proof of the special damages and proof of discrimination and harassment. Applying the public service circulars and the reasoning in Erastus K. Gitonga v NEMA, the court found the non-practice allowance circular applied to the claimant and awarded Kshs 620,000/= for 31 months; the prosecutorial allowance claim failed because the claimant admitted no prosecutorial work. Pension claims failed because the scheme did not exist between February and December 2017 and all dues were subsequently paid by ICEA. The Mombasa subsistence and travel claim of Kshs 39,600/= was unrebutted and awarded. Discrimination and damages claims were dismissed for lack of proof. Total award: Kshs 659,600/= with interest from filing and costs of the suit.

Key legal issues

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01

Entitlement to non-practice and prosecutorial allowance

Holding

Non-practice allowance awarded for 31 months at Kshs 20,000/= per month (Kshs 620,000/=); prosecutorial allowance dismissed.

Reasoning

The claimant served as a legal officer in the public service legal subsector, and the 1st respondent's board resolved to apply and enhance non-practice allowance from 1st July 2010. The respondent failed to distinguish the claimant from the circular's scope. However, the claimant expressly admitted he conducted no prosecutorial work, so that head failed.

p. 5
02

Pension benefits for the period February 2017 to August 2019

Holding

Claim for pension benefits dismissed in its entirety.

Reasoning

The respondent's pension scheme commenced in December 2017; for the preceding 10 months neither party contributed and the employment contract provided no stop-gap arrangement. The contributory ICEA scheme thereafter paid all dues in 2021, and the insurer is not a party to the suit.

p. 5
03

Subsistence and travel allowance for the Mombasa trip

Holding

Kshs 39,600/= awarded as the respondent failed to rebut the claim.

Reasoning

RW 1 asserted the travel claims were settled but was unable to rebut the specific claim for the two-day subsistence allowance and air ticket for the SOYA Awards event at Fort Jesus, Mombasa on 11/1/2019.

p. 6
04

Discrimination, abuse and harassment damages

Holding

Claims for general, exemplary and aggravated damages dismissed.

Reasoning

RW 1 denied discrimination or abuse, and the delay in paying allowances and terminal benefits was explained by the winding up of the defunct National Sports Fund and transfer of pension contributions. The claimant's evidence did not prove the alleged discrimination or deprivation of dignity.

p. 6

Legal principles established

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  • Advocates and legal officers serving in the legal subsector of the public service are entitled to non-practice allowance under the applicable public service circulars.

Court orders

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  1. 1.Kshs 620,000/= being unpaid non-practice allowance for 31 months.
  2. 2.Kshs 39,600/= being reimbursement for travel to Mombasa on 11/1/2019 (total award Kshs 659,600/=).
  3. 3.Interest at court rates from date of filing suit till payment in full.
  4. 4.Costs of the suit.

Authorities

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Legislation

  • Employment Actnot specified

Cases cited (1)

  • Erastus K. Gitonga and 4 others versus National Environmental Management Authority; Law Society of Kenya (interested party)
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act and the contract of employment pleaded)

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, "Ng’ati v Sports, Arts & Social Development Fund Oversight Board & 3 others (Employment and Labour Relations Cause E6590 of 2020) [2024] KEELRC 1371 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1371/eng@2024-06-06

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