Lolwerikoi v Cabinet Secretary, Ministry of Agriculture, Livestock and Fisheries & 2 others (Cause E364 of 2021) [2024] KEELRC 2356 (KLR)
The bottom line
#A Kenyan court awarded a former acting managing director Kshs.1.37 million in acting allowance but rejected his constructive dismissal claim because he lacked evidence.
What this practically means
#Executive summary
#Key legal issues
#Employment status of the Claimant
The Claimant was an employee of the 3rd Respondent despite the absence of a formal employment letter, as evidenced by payment of salary, provision of a vehicle, driver, imprest and salary advance, and the Respondents' admission in the Reply
Applying the definitions of employee, employer and contract of service in Section 2 of the Employment Act, the court found letters of appointment and extension from Cabinet Secretaries and the Respondents' admission in their Reply sufficient proof. Payment of salary, provision of a company motor vehicle, driver, imprest and salary advances corroborated an employment relationship with the 3rd Respondent.
Constructive dismissal
Constructive dismissal was not proved
Adopting the contractual test from Western Excavating (ECC) Ltd v Sharp as domesticated in Coca Cola v Ligaga, the court required proof of a repudiatory breach and the employee's response. The Claimant gave no credible, verifiable evidence of reporting to the Ministry or of when and how he decided to treat his employment as terminated, and the court found him less than truthful on this point.
Acting allowance
The Claimant was entitled to acting allowance at 25% of basic salary for the period served, less any amount paid
The court relied on the PSC Human Resource Policies and Procedures Manual, 2016 and Section 10(7) of the Employment Act, holding that the absence of a detailed contract could not avail the employer since it was the employer's obligation to provide one. Only one payslip (May 2017) evidenced payment of the allowance.
Commuter allowance
Not payable because the employer provided official transport
Work tickets for vehicle GKA 528B showed the Claimant was the authorising officer who used the vehicle daily between residence and office. Clauses 9(1) and 9(3) of the HR Manual make commuter allowance conditional on non-provision of government transport, and paying it alongside a vehicle would amount to double compensation.
The Counter-claim for Kshs.4,358,006.60
Dismissed for want of evidence
Neither RWII nor RWIII produced a single document on the alleged salary advances or imprests, and RWIII admitted no documents on the salary advances were attached. Despite the alleged absence of the Claimant's personal file, the 3rd Respondent had other records it could have filed. The claim failed for total evidentiary failure.
The personal file
The Claimant did not return his original personal file and must do so
RWI's uncontroverted evidence, corroborated by her handover report of 26th April 2018, established that the Claimant retained the original personal file and a copy given to him on 19th February 2018. The Claimant adduced no evidence to controvert this.
Legal principles established
#- Where the employer fails to provide a written contract or written particulars, the burden of proof shifts against the employer under Section 10(7) of the Employment Act
- An employee provided with official transport by the employer is not entitled to commuter allowance
- A party claiming a monetary sum must adduce documentary evidence; merely throwing a figure at the court will not suffice
- Constitutional violations must be pleaded and demonstrated with precision
Court orders
#- 1.Judgment entered for the Claimant for acting allowance of Kshs.1,372,800.00 less any amount already paid as per the 3rd Respondent's payroll for the period in question
- 2.The Claimant to return the original personal file given to him on 19th February, 2018 within 30 days
- 3.All other claims and the Respondent's counter-claim are dismissed
- 4.Parties shall bear their own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Article 41 of the Constitution invoked by the Claimant)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ng ' ang' a v Africa Film & TV Talent Training Institute (Cause E831 of 2021) [2025] KEELRC 1333 (KLR)[2025] KEELRC 1333 (KLR)8 May 2025applied
- Ocharo v Anti - Female Genital Mutilation Board & another; Salaries and Remuneration Commission & 8 others (Interested Parties) (Petition E013 of 2021) [2025] KEELRC 903 (KLR)[2025] KEELRC 903 (KLR)21 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Lolwerikoi v Cabinet Secretary, Ministry of Agriculture, Livestock and Fisheries & 2 others (Cause E364 of 2021) [2024] KEELRC 2356 (KLR)", Case Analysis (2024). Cause No E364 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2356/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.