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ELRCPartially AllowedNot stated in the judgment (claim by consent amended statement of claim dated 16th August 2019, amended 20th March 2023)

Okallo v Kenya Medical Research Institute & another (Cause 558 of 2019) [2025] KEELRC 2343 (KLR)

Employment and Labour Relations Court
30 July 2025
12,447 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~50 min to read original · ~4 min brief

The bottom line

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A retired KEMRI employee lost her claim for constitutional damages and was ordered to pay over Kshs.1.7 million in rent for staying in employer housing after retirement.

What this practically means

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Executive summary

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The claimant, a retired Chief Administrative Officer of KEMRI who served from the mid-1980s until 1st April 2018, sued claiming unpaid pension dues of Kshs. 3,748,754.13, an updated Member Benefit Statement, a permanent injunction against eviction from KEMRI House M04, and general damages for alleged violation of Articles 25(a), 27(1), 28, 29(d) and (f) and 57(c) of the Constitution arising from the delayed pension and threatened eviction. KEMRI counterclaimed for vacant possession, rent of Kshs. 25,000 per month amounting to Kshs. 1,775,000 as at April 2024, interest and set-off. By consent the pension claim and the claimant's vacation of the house were settled, leaving general damages and the counterclaim for determination. The court held that housing was an employment benefit under section 31 of the Employment Act which lapsed on retirement after the 60-day grace period in the Housing Policy; the claimant's continued occupation was a breach of contract amounting to trespass, and the demand letters and eviction notices were justified. The claim for general damages failed the Anarita Karimi Njeru threshold of precision and the pension had been paid with interest, which constituted adequate compensation. On the counterclaim, the ELRC had original jurisdiction since the rent dispute arose from the employment relationship; the arbitration clause was waived by failing to apply for a stay before filing a response. The counterclaim was allowed: the claimant was ordered to vacate (the order refers to House No. M07 despite the suit concerning M04), to pay Kshs. 1,775,000 outstanding rent plus Kshs. 25,000 monthly until vacation, with interest. Each party was ordered to bear its own costs, and 30 days of execution was granted.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant is entitled to general damages for psychological stress and violation of Constitutional rights as per the amended claim
  2. 2.Whether the Respondent's claim for rent is merited
  3. 3.Costs

Key legal issues

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01

Whether the claimant proved a constitutional violation entitling her to general damages

Holding

No; the claim failed the Anarita Karimi Njeru precision threshold and the delay in pension was a contractual matter for which interest was paid

Reasoning

The court reviewed the demand letters and found them to be mere notices to vacate, not threats or harassment. The alleged physical harassment was unsubstantiated. The pension delay was purely contractual and the pension was paid with interest, which adequately compensated the claimant. The claim therefore did not meet the Anarita Karimi Njeru threshold of specifying with precision the provisions infringed and the manner of infringement.

p. 12
02

Whether the claimant was a trespasser and the counterclaim for rent merited

Holding

Yes; her right to housing ceased on retirement and after the 60-day grace period she was in breach and a trespasser; the counterclaim was allowed

Reasoning

Housing was an employment benefit under section 31 of the Employment Act. The Housing Policy gave a 60-day grace period after retirement, which expired on 1st June 2018. The claimant's continued stay was unjustified since the obligation to pay pension lay with the pension scheme, not the owner of the house. Following East African Railways Corporation v Karangi and Stella Wambui Muhoro, she was a trespasser duty-bound to pay rent of Kshs. 25,000 per month from 1st June 2018.

p. 11
03

Jurisdiction of the ELRC over the rent counterclaim vis-a-vis the Rent Restriction Tribunal and the arbitration clause

Holding

The ELRC has original jurisdiction because the rent dispute arose from the employment contract; the arbitration clause was waived by filing a response to the counterclaim

Reasoning

The rent arose from an employment benefit and salary deductions, hence a dispute arising out of employment under section 12 of the ELRCA. The claimant never applied for a stay under section 6(1) of the Arbitration Act and by filing a response to the counterclaim acknowledged the court's jurisdiction, thereby waiving the arbitration clause and the exhaustion objection.

p. 18

Legal principles established

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  • An employee's right to housing under section 31 of the Employment Act ceases upon termination of employment, subject to any contractual provision to the contrary
  • A retired employee who refuses to vacate employer's staff quarters after notice is a trespasser
  • The right to seek stay and referral to arbitration under section 6(1) of the Arbitration Act is lost once a defence/response is filed without such application

Court orders

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  1. 1.An order directing that the Claimant vacates House No. M07 situated within the 1st Respondent's Staff Quarters immediately and unconditionally and surrender the keys to the 1st Respondent's Housing Officer
  2. 2.An order directing the Claimant to pay the 1st Respondent the sum of Kshs. 1,775,000/=, being the rent outstanding as at April 2024, and a further sum of Kshs. 25,000/= per month from that date until she vacates the subject property
  3. 3.Interest from date of judgment at court rates until payment in full
  4. 4.Each party to bear own costs in the claim and the counterclaim
  5. 5.30 days of execution granted

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act

Relief refused

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General damages for breach of rights under Articles 25(a), 27(1), 28, 29(d) and (f) and 57(c) of the Constitution

The claim did not meet the Anarita Karimi Njeru threshold for constitutional violation

p. 12

General damages for psychological distress and torture

Claimant's pension was paid with interest, which was adequate compensation for breach of contract

p. 12

Set-off of rent against pension dues

Not granted in the final orders; the claimant's pension claim had been settled by consent

Costs

Each party to bear own costs in the claim and the counterclaim (the court, tempering justice with mercy given the partial consent settlement and the claimant's retirement)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The outstanding prayers for general damages and compensation under the amended claim dated 20th March 2023 are dismissed for lack of merit. The counterclaim is allowed.
p. 19Disposition
An order directing the Claimant to pay the 1st Respondent the sum of Kshs. 1,775,000/=, being the rent outstanding as at April, 2024, and a further sum of Kshs. 25,000/= per month from the said date until the date she vacates the subject property.
p. 19Final orders - rent
To temper justice with mercy the court ordered each party to bear own costs in the claim and the counterclaim.
p. 19Costs
The contract of employment having gone, the fringe benefits of subsidized housing went with it.
p. 15Fringe benefits cease on termination (cited with approval)
The court finds that the continued stay in the house post 60 days of retirement was in breach of the contractual relationship with the employer and amounted to trespass.
p. 11Trespass after retirement

Issues in the judgment

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material

Internal inconsistency in the disposition: the claim and counterclaim concern House No. M04 throughout, but the final order directs vacation of 'House No. M07'

minor

The judgment inconsistently records the claimant's employment start date

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, "Okallo v Kenya Medical Research Institute & another (Cause 558 of 2019) [2025] KEELRC 2343 (KLR)", Case Analysis (2025). Not stated in the judgment (claim by consent amended statement of claim dated 16th August 2019, amended 20th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2343/eng@2025-07-30

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