Ndunda v Kerio Valley Development Authority (Cause E021 of 2024) [2025] KEELRC 2708 (KLR)
The bottom line
#A Kenyan court ordered Kerio Valley Development Authority to pay a reinstated employee underpaid allowances, but threw out most of his bigger claims for lack of proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was underpaid gross salary following reinstatement
Dismissed; the Nakuru award of Kshs. 94,599 applied only to the 11 months out of service and the judgment was compromised by consent for Kshs. 875,996 and reinstatement.
The court perused the Nakuru Cause No. 96 of 2013 judgment and found the Kshs. 94,599 figure was computed as gross pay for 11 months ending 30.09.2013, not a permanent pay scale. There was also evidence of a consent compromising the judgment on terms of reinstatement and payment of Kshs. 875,996. The claimant's assumption of a static gross salary across 128 months was therefore unsupported.
Whether the Claimant was underpaid hardship allowance
Succeeded partially; the Respondent was to pay underpaid hardship allowance at applicable SRC rates for the period April 2019 to July 2021.
It was not disputed the claimant served at Wei Wei, a gazetted hardship area, from May 2014. RW1 admitted the claimant was not paid per the 2014 SRC circular. The Respondent offered no evidence of efforts to pay the arrears; the phased, funding-dependent implementation defence was rejected as untenable.
Whether the Claimant was underpaid house allowance
Succeeded partially; awarded Kshs. 76,800 being Kshs. 2,400 per month for 32 months (December 2018 to July 2021).
The claimant was paid Kshs. 17,000 against a circular rate of Kshs. 11,000/15,400 while at Wei Wei, so no underpayment could be sustained for 2014-2018. However, the 2018 reduction to Kshs. 13,000 was made without consultation or contractual variation, contrary to section 10(5) of the Employment Act, and was unlawful.
Whether the Claimant is entitled to reimbursement of pension contributions
Dismissed for lack of proof.
The claimant alleged diminished pension contributions flowing from the underpaid salary but produced no pension statements to demonstrate the alleged shortfall. The burden of proof on a balance of probability was not discharged.
Whether the Claimant is entitled to airtime allowance
Dismissed; no contractual or statutory basis for the claim.
The appointment letter made no provision for airtime allowance, and the claimant conceded this in cross-examination. Although airtime was paid at the commencement of employment, such payment did not, without more, create a contractual right; the Respondent showed it was payable ad hoc subject to departmental approval.
Whether the Claimant is entitled to damages for unfair labour practices
Declined; the monetary awards adequately compensated the established breaches.
Although the court found underpayment of hardship allowance and unlawful variation of house allowance amounting to unfair labour practice in breach of Article 41, it held that the monetary awards already compensated these breaches, so general damages would be duplicative.
Legal principles established
#- A lumpsum salary figure awarded for a fixed period of unfair dismissal does not become the employee's permanent gross salary upon reinstatement.
- The defence of lack of funds is not a tenable excuse for failing to pay allowances prescribed by SRC circulars.
- An unilateral reduction of a contractual allowance without consultation or contractual variation is unlawful, and the employee is at minimum entitled to the applicable SRC circular rate.
- Ad hoc payment of an allowance at the commencement of employment does not create a contractual right.
Court orders
#- 1.The claim for underpayment of gross salary is dismissed
- 2.The Respondent shall pay the Claimant underpaid hardship allowance for the period April 2019 to July 2021 at the applicable SRC rates
- 3.The Respondent shall pay the Claimant Kshs. 76,800 being underpayment of house allowance between December 2018 and July 2021
- 4.The claims for diminished pension contribution, airtime allowance, and general damages are dismissed
- 5.There shall be orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndunda v Kerio Valley Development Authority (Cause E021 of 2024) [2025] KEELRC 2708 (KLR)", Case Analysis (2025). Cause No E021 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2708/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.