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ELRCPartially AllowedCause No E364 of 2021· [2024] KEELRC 2356 (KLR)

Lolwerikoi v Cabinet Secretary, Ministry of Agriculture, Livestock and Fisheries & 2 others (Cause E364 of 2021) [2024] KEELRC 2356 (KLR)

Employment and Labour Relations Court
30 September 2024
4,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, formerly Production Manager at Kenya Seed Company Ltd, was appointed Acting Managing Director of Pyrethrum Processing Company of Kenya Ltd by the Cabinet Secretary, Ministry of Agriculture, by letter dated 18th July 2016, with the acting extended twice, until he received a letter of transfer to the Ministry's State Department for Crop Development dated 3rd October 2019 and was asked to hand over to a new Acting Managing Director. He claimed acting and commuter allowances, a declaration of violation of constitutional rights, an order compelling completion of his transfer, and compensation for constructive termination. The Respondents admitted the appointment but denied entitlement, arguing the Claimant was not their employee and that allowances were paid, and counter-claimed Kshs.4,358,006.60 as unsurrendered imprests and salary advances. The court, Gakeri J, first held the Claimant was an employee of the 3rd Respondent on the basis of the appointment and extension letters, the Respondents' admission, and the payment of salary and provision of a vehicle, driver, imprest and salary advances. Constructive dismissal was not proved, the Claimant giving no credible evidence of reporting to the Ministry or of terminating the relationship. The declaration and compensation for rights violations were declined under the Anarita Karimi Njeru precision standard, and the order compelling transfer formalities was refused for want of evidence. Acting allowance at 25% of basic salary was awarded, only one payslip showing prior payment, while commuter allowance was refused because official transport was provided. The counter-claim was dismissed for complete absence of supporting documents. The Claimant was ordered to return his personal file within 30 days. Each party bears own costs.

Key legal issues

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01

Employment status of the Claimant

Holding

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

Reasoning

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.

p. 6
02

Constructive dismissal

Holding

Constructive dismissal was not proved

Reasoning

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.

p. 7
03

Acting allowance

Holding

The Claimant was entitled to acting allowance at 25% of basic salary for the period served, less any amount paid

Reasoning

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.

p. 8
04

Commuter allowance

Holding

Not payable because the employer provided official transport

Reasoning

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.

p. 9
05

The Counter-claim for Kshs.4,358,006.60

Holding

Dismissed for want of evidence

Reasoning

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.

p. 10
06

The personal file

Holding

The Claimant did not return his original personal file and must do so

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 2.The Claimant to return the original personal file given to him on 19th February, 2018 within 30 days
  3. 3.All other claims and the Respondent's counter-claim are dismissed
  4. 4.Parties shall bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41; Article 234(2)(a)(ii); Article 159(2)(d); Article 48
  • Employment Act, 2007Section 2; Section 5; Section 8; Section 10(1) and 10(7)
  • Public Service Commission Human Resource Policies and Procedures Manual, 2016Clause 9(1) and 9(3)
  • Civil Procedure RulesOrder 7 Rule 5; Order 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (13)

  • Anne Wairimu Kimani V Kenya Agricultural and Livestock Research Organization
    (2017) eKLR
  • Beatrice Ochieng Osir V Board of Trustees Teleposta Pension Scheme
    Cause No. 665 of 2011
  • Fredrick Odongo Owegi V CFC Life Assurance Ltd
    Cause No. 1001 of 2012
  • Kenya Ports Authority V Munyao & 4 others
    (2023) KESC 112
  • Nyangasi Ratemo & 9 others V Kenya Police Staff Sacco Ltd & another
    (2013) eKLR
  • Carolyne L. Musonye V Panari Hotel Ltd
    (2017) eKLR
  • Alice Wanjiru Ruhiu V Messiac Assembly of Yahweh
    (2021) eKLR
  • Mumo Matemu V Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Coca Cola East & Central Africa Ltd V Maria Kagai Ligaga
    (2015) eKLR
  • Western Excavating (ECC) Ltd V Sharp
    (1978) Q.B 761
  • Milton M. Sanya V Agha Khan Hospital Kisumu
    (2017) eKLR
  • Nathan Ogada Atiagaga V David Engineering Ltd
    (2015) eKLR
  • Anarita Karimi Njeru V Republic
    (1976-80) KLR 1272
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007; Article 41 of the Constitution invoked by the Claimant)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.