Raksha International Medical Services Meditirina Hospital Rai International Medical Services v Ogetange (Appeal E038 of 2024) [2025] KEELRC 1805 (KLR)
The bottom line
#A Kenyan employment appeal court ruled that a contract with a consolidated salary excludes a separate house allowance award, but otherwise upheld the employee's win.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in awarding house allowance despite a consolidated salary
- 2.Whether the trial court erred in awarding leave allowance
- 3.Whether the trial court wrongly shifted the burden of proof to the Appellant
Key legal issues
#Consolidated salary and house allowance
The award of Kshs. 63,000/- house allowance was reversed because the contract provided for a consolidated salary
The contract exhibited before the Court expressly stipulated a consolidated salary of Kshs. 35,000/-. Under section 31(2) of the Employment Act a contract that expressly consolidates house allowance in the wage excludes a separate house allowance claim. The Trial Magistrate's award contradicted the express contractual provision and was set aside on this head only.
Shifting of the burden of proof in employment claims
The Employment Act expressly shifts the burden of proof to the employer in specified circumstances
The Appellant objected that the Trial Court wrongly shifted the burden of proof to it. The Court held that under sections 5(7), 10(7) and 47(5) of the Employment Act the burden properly rests on the employer as custodian of employment records to prove payment or disprove the employee's allegations, so the Magistrate did not err.
New grounds raised at submission stage
A first appellate court may entertain grounds not in the memorandum of appeal if parties had sufficient opportunity to address them
Relying on Margaret Njeri Mbugua v Kirk Mweya Nyaga, the Court held that Order 42 Rule 4 permits consideration of new grounds where the affected party has had sufficient opportunity to contest them. The consolidated salary ground was raised without leave and the Respondent lacked a full chance to address it, influencing the denial of costs.
Legal principles established
#- Where a contract of employment expressly provides for a consolidated salary, an award of house allowance on top of it is unwarranted
- A first appellate court may consider grounds not set out in the memorandum of appeal provided parties have sufficient opportunity to address them
Court orders
#- 1.Judgment of the Learned Hon. Jacinta A. Orwa (CM) in Homa Bay Chief CMELRC No. E007 of 2023 is partly set aside in regard to the award of house allowance
- 2.The rest of the decision is upheld in its entirety
- 3.Each party to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court (Homa Bay), ELRC
- Homa Bay Chief CMELRC No. E007 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court decision under the Employment and Labour Relations Court Act and Civil Procedure Act (not expressly cited)
Relief refused
#Setting aside the entire judgment of the Trial Court
Only the house allowance award was found erroneous; the balance of the decision was sound
Costs of the appeal to the Appellant
The consolidated salary ground was raised at the last moment without leave
Costs
The parties will each bear their own costs for this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Judgment of the Learned Hon. Jacinta. A. Orwa (CM) in Homa Bay Chief CMELRC No. E007 of 2023 is partly set aside in particular, in regard to the award of house allowance. The rest of the decision is upheld in its entirety. The parties will each bear their own costs for this appeal.
The appellate Court is duty bound to revisit and exhaustively re-evaluate and reexamine the evidence presented before the trial court to arrive at its own independent conclusions
The contract exhibited provided for a consolidated salary and as such, the Learned Trial Magistrate was incorrect in not upholding it.
Issues in the judgment
#The judgment identifies the Respondent with both male and female pronouns, and the trial court judge is referred to as 'Learned Hon. Jacinta. A. Orwa' with inconsistent punctuation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raksha International Medical Services Meditirina Hospital Rai International Medical Services v Ogetange (Appeal E038 of 2024) [2025] KEELRC 1805 (KLR)", Case Analysis (2025). Homa Bay Chief CMELRC No. E007 of 2023 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1805/eng@2025-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.