Dr. Magare Gikenyi J Benjamin v County Government of Nakuru & 4 others
The bottom line
#Kenya's Court of Appeal ruled an employer lawfully stopped an employee's salary because he failed to disclose his study suspension or seek a leave extension.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant was constructively terminated
No. The appellant was still in employment, had sought reinstatement below, and his new constructive-dismissal theory was unpleaded new material introduced only in submissions.
The appellant did not dispute the principles on constructive dismissal but their applicability, yet he remained in employment and had pursued reinstatement below. The Jones v F. Sir & son perspective (waiting for another job before leaving) arose for the first time on appeal and would have required leave to introduce additional evidence. The Court declined to convert itself into a court of first instance, and the ground failed.
Whether the salary stoppage complied with Articles 25, 41 and 47 of the Constitution as read with the Fair Administrative Actions Act
The stoppage was justified: the appellant breached his duty to apply for extension of study leave and to disclose his suspension from studies, so the employer was vindicated under the applicable Human Resource Policy.
The Court, reappraising the record, agreed with the trial Judge that the appellant was obliged to apply for extension of his study leave beyond the fixed term ending 21st October 2017 and to inform the employer of his suspension on disciplinary grounds. It was the respondents who took the initiative to obtain accurate information from the University. No fault was attributable to the respondents, and the appellant did not rebut the findings.
Whether the appellant's constitutional rights were violated, including equality and freedom from discrimination
No constitutional violations were established; the trial court's findings on facts and law did not warrant disturbance.
The Court acknowledged that allegations of ethnic discrimination are grave and cannot be taken lightly, but the totality of the evidence proved otherwise in respect of each allegation. Having found against the appellant on the salary stoppage, there was no basis for the constitutional claims, and the consequential orders of the trial court stood.
Effect of failure to file a response and the place of submissions on the burden of proof
Failure by a respondent to respond does not lower the claimant's burden to prove the claim to the court's satisfaction.
The respondents never filed a response and the matter proceeded by formal proof, but the claimant's onus remained. The Court also examined the respondents' submissions and found no concession to pay the withheld salary; the replying affidavit of Dr. Ben Osore was in reply to a dismissed application. The appellant's submission on concession was therefore superfluous.
Legal principles established
#- On a first appeal, the Court of Appeal must reappraise the evidence and record and, where necessary, make its own findings; failure by a respondent to file a response does not lower the threshold on the claimant to prove his case
- An appellate court will not determine an issue on the basis of additional information introduced for the first time in submissions without leave
- An employee released on study leave for a fixed term has a duty of full disclosure to the employer of any delay, extension or disciplinary proceedings affecting the release; failure to do so permits the employer to treat the absence as absence without leave and to stop salary
Court orders
#- 1.The appeal is unmerited and is hereby dismissed with costs
- 2.The judgment and decree of the Employment and Labour Relations Court at Nakuru in Cause No. 22 of 2019 issued on 24th July 2020 be and is hereby affirmed
- On appeal from
- Employment and Labour Relations Court at Nakuru
- Cause No. 22 of 2019
- Jurisdiction invoked
- Section 3(1) of the Appellate Jurisdiction Act flowing from Article 164(3) of the Constitution (first appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Government of Kwale v Samuel Kipyator Kiptalum[2025] KECA 1310 (KLR)18 Jul 2025followed
Cite this brief
#Cite this brief
Caselaw, "Dr. Magare Gikenyi J Benjamin v County Government of Nakuru & 4 others", Case Analysis (2024). Civil Appeal (Employment and Labour Relations Appeal) from ELRC Cause No. 22 of 2019, Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1440/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.