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ELRCPartially AllowedNotice of Motion dated 18th December 2024 (main claim number not stated in the judgment)· [2025] KEELRC 1580 (KLR)

Simotwo v County Government of Narok & 2 others (Employment and Labour Relations Cause E104 of 2024) [2025] KEELRC 1580 (KLR)

Employment and Labour Relations Court of Kenya
30 May 2025
4,445 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Narok's County Assembly to pay a former Clerk his full salary after his secondment ended, confirming seconded workers keep their original employment.

What this practically means

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Executive summary

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The Claimant, formerly Clerk of the County Assembly of Narok, moved the Employment and Labour Relations Court at Nakuru by Notice of Motion dated 18th December 2024 seeking orders that, pending the hearing of his claim, he be reinstated on the payroll and paid salary arrears from August 2024, asserting he was a permanent and pensionable employee whose secondment to the County Executive (14th June 2018, extended to 7th June 2024) lapsed without termination, after which he was dropped from the payroll despite an approved SRC salary increment, with arrears of Kshs. 1,951,200. The 1st Respondent denied any employer-employee relationship and invoked the Giella injunction principles; the 3rd Respondent admitted key facts but contended the Claimant should have awaited reassignment by the County Public Service Board and that a new Clerk had been appointed. The 2nd Respondent did not appear. Relying on Kenya Methodist University v Kaungania and Mary Nyangasi Ratemo, the court held that a seconded employee remains an employee of the original employer, who must facilitate his return upon expiry of the secondment. Stopping the Claimant's salary without termination or resignation violated fair labour practice under Article 41 of the Constitution, and the 'no work no pay' principle did not apply since he was denied the opportunity to work. The court allowed the application, directing the 2nd Respondent to pay the pending salary from August 2024 to date of the ruling, with costs in the cause and the main suit set for hearing on 1st July 2025.

Key legal issues

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01

Whether the Claimant, whose secondment from the County Assembly of Narok to the County Executive expired on 7th June 2024, remained an employee entitled to salary and reinstatement to the payroll pending trial

Holding

Yes. The court held that on expiry of the secondment the Claimant remained an employee of the 2nd Respondent (the County Assembly), which was duty bound to facilitate his return, and that stopping his salary violated fair labour practice under Article 41 of the Constitution.

Reasoning

Relying on Kenya Methodist University v Kaungania and Mary Nyangasi Ratemo, the court held that during secondment the seconding entity remains the employer, with full powers reviving on the secondment's end. The Claimant was neither terminated nor did he resign; his term did not end by effluxion of time. The 2nd Respondent was bound to absorb him back, and the 'no work no pay' principle did not apply because he did not abscond or refuse to work - he was simply not given the opportunity to return. The approved SRC salary increment was also applicable since the Board had approved it.

p. 9
02

Whether the interlocutory relief sought (payroll reinstatement and payment of arrears) should be granted pending the hearing of the main claim

Holding

The court found the application merited and granted interim relief, directing the 2nd Respondent to pay the pending salary from August 2024 to date of the ruling, with costs in the cause.

Reasoning

Applying the Giella v Cassman Brown principles and the public service secondment guidelines, the court was satisfied the Claimant had proved he deserved the orders prayed. Because the main suit was pending and should be heard expeditiously, the orders were granted pending determination of the main suit, with the main suit set down for hearing on 1st July 2025.

p. 9

Legal principles established

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  • A seconded employee remains an employee of the original (substantive) employer at all material times during the secondment, and upon expiry of the secondment the original employer must facilitate the employee's return.
  • Where a seconded officer's secondment expires, the employer cannot simply stop paying the officer's salary; failing to absorb the officer back violates fair labour practice under Article 41 of the Constitution.
  • Under the Guidelines on Secondment in Public Service 2016, a seconded officer who completes secondment returns to his original position or, if unavailable, is placed in a suitable vacancy within his former grade.

Court orders

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  1. 1.That the 2nd Respondent to pay the Claimant his pending salary as per the revised terms for the month of August 2024 to date of the ruling
  2. 2.That the costs be in the cause and the main suit be heard on 1st July 2025

Authorities

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Legislation

  • Employment and Labour Relations Court Actsections 3 and 12(3)(i)
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 45
  • Constitution of Kenya, 2010Articles 28, 41, 201, 236, 159(2)(d), 48
  • County Government ActSection 13
  • County Assembly Services Act
  • Public Service Commission Act
  • Public Finance Management Act
  • Civil Procedure Actsection 27(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Guidelines on Secondment in Public Service 2016clauses 5.0(xi) and 5.0(ii)
  • Salaries and Remuneration Commission circular on revised terms of Clerks of County AssemblyRef No. SRC/TS/24/6 vol. 1(56) dated 14th December 2023

Cases cited (14)

  • Mary Nyangasi Ratemo & 9 others v Kenya Police Staff Sacco Limited & Another
    [2013] KEELRC 791 (KLR)
  • Kirui v Principal, Bomet University College & another
    [2022] KEELRC 1208 (KLR)
  • Rev. John Mugania v Kenya Methodist University & Prof Mutuma Mugambi, Cause No. 133 of 2013
  • Fredrick Odhiambo Ndede v Makueni County Public Service Board & another
    [2015] KEELRC 236 (KLR)
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kenya Commercial Bank Limited v Nicholas Ombija
    [2009] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union, Kenya & 3 others
    [2014] eKLR
  • Joseph Mwangi Kamau v Attorney General & another
    [2018] eKLR
  • Anthony Omari Ongare v Teachers Service Commission
    [2017] eKLR
  • Ahmed Aden Hire v Nathif Jama & Garissa County Government
    [2016] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
  • Kenya Methodist University v Kaungania & another
    [2022] KECA 90 (KLR)
Jurisdiction invoked
Sections 3 and 12(3)(i) of the Employment and Labour Relations Court Act and Rule 45 of the Employment and Labour Relations Court (Procedure) Rules, 2024

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, "Simotwo v County Government of Narok & 2 others (Employment and Labour Relations Cause E104 of 2024) [2025] KEELRC 1580 (KLR)", Case Analysis (2025). Notice of Motion dated 18th December 2024 (main claim number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1580/eng@2025-05-30

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