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ELRCDismissedELRC Cause (Kakamega) - statement of claim dated 26th February, 2024· [2025] KEELRC 730 (KLR)

Wanguche v Masinde Muliro University of Science & Technology (Cause E003 of 2024) [2025] KEELRC 730 (KLR)

Employment and Labour Relations Court
6 March 2025
DNDAVID NDERITU
2,651 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a doctor's claim for enhanced allowances because his university clinic was not a gazetted public hospital, though the claim was filed on time.

What this practically means

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Executive summary

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The claimant, a medical officer employed by the respondent from 2010 until his retirement on 30th June 2023, sued for arrears of enhanced emergency call allowances (Kshs50,000 per month) and medical risk allowances (Kshs15,000 per month) from 1st January 2017 to 30th June 2023, plus costs and interest. He relied on an SRC circular of 14th June 2015, the return-to-work-formula of 14th March 2017, a CBA of 30th June 2017 between the government and KMPDU, and the judgment in Nairobi ELRC Cause No. E516 of 2020, alleging unfair labour practice. The respondent, through the Attorney General, denied liability, contending that the enhanced allowances applied only to health workers in county-managed public health facilities, that the claim was in part statute-barred under Section 89 of the Employment Act, and that the claimant's entitlements were governed by his contract. The court framed three issues: limitation, entitlement, and costs. On limitation, it held the unpaid monthly allowances constituted a continuing injury under Section 89, and the suit filed about eight months after retirement was timely. On entitlement, the court distinguished ELRC E516 of 2020, where the facility was a gazetted public hospital open to the public, and found no evidence that the respondent's facility, serving only university students and staff, was so gazetted. Applying the SRC circular of 10th March 2021, which binds public institutions, the court found the claimant was not entitled to the enhanced allowances and dismissed the cause with each party bearing their own costs.

Key legal issues

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01

Whether the claim was statute-barred under Section 89 of the Employment Act

Holding

Not statute-barred; the unpaid monthly allowances constituted a continuing injury and the suit, filed seven months and 28 days after retirement, was within 12 months of cessation

Reasoning

The allowances, if due, were payable monthly and their non-payment created a continuing wrong. Under Section 89, a continuing-injury claim must be filed within twelve months of cessation. The claimant retired on 30th June 2023 and filed on 27th February 2024, within the statutory period. The Court of Appeal's adoption of the Indian Supreme Court's test of a subsisting breach of duty supported this conclusion.

02

Whether the claimant was entitled to the enhanced emergency call and medical risk allowances

Holding

Not entitled; the respondent's facility was not a gazetted public hospital open to the general public, and the SRC circular of 10th March 2021 excluded doctors in such facilities from the enhanced allowances

Reasoning

Although the claimant was a KMPDU member and a judgment (ELRC E516 of 2020) had granted similar allowances, that judgment concerned a gazetted public health facility (Kenya University Health Centre, Legal Notice No. 97 of 2nd July 2017) open to the public. The claimant adduced no evidence that the respondent's facility was gazetted as a public hospital. The SRC circular of 10th March 2021 binds the respondent and confines the allowances to gazetted public hospital facilities.

p. 6

Legal principles established

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  • Non-payment of monthly allowances due under a contract of service constitutes a continuing injury under Section 89 of the Employment Act, actionable within twelve months of cessation
  • SRC circulars bind all public institutions; doctors in public university health facilities are entitled to enhanced allowances only where the facility is gazetted as a public hospital open to the general public

Court orders

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  1. 1.This cause is dismissed.
  2. 2.Each party to bear own costs.

Authorities

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Legislation

  • Employment ActSection 90 (now Section 89)
  • Limitation of Actions ActSection 4(1) (Cap. 22)
  • Legal Notice No. 97 of 2nd July, 2017

Cases cited (3)

  • The German School Society & Another v Ohany & Another
    (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR)
  • M. Siddiq v Suresh Das
    (2020) 1 SCC 1
  • Nairobi ELRC Cause No. E516 of 2020 (Mbaru J., judgment delivered 30th November, 2022)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 89) and the employment relationship 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, "Wanguche v Masinde Muliro University of Science & Technology (Cause E003 of 2024) [2025] KEELRC 730 (KLR)", Case Analysis (2025). ELRC Cause (Kakamega) - statement of claim dated 26th February, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/730/eng@2025-03-06

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