Alfred Mumpasoi Keriolale v Narok County Government & another [2021] KEELRC 1495 (KLR)
The bottom line
#A Kenyan court ruled that gratuity must be written into an employment contract or policy to be payable, and gazette notices on gratuity do not apply retroactively.
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 claimant is entitled to payment of gratuity
- 2.Whether the SRC Gazette Notice dated 7th July, 2017 and the Council of Governors circular dated 5th September, 2017 apply retrospectively to the claimant
- 3.Whether the claimant was a state officer within the meaning of Article 260 of the Constitution
- 4.Whether the claimant is entitled to a Certificate of Service
Key legal issues
#Whether the claimant was entitled to gratuity under the SRC Gazette Notice No.6518 of 7th July, 2017
The claim is not entitled to gratuity under the SRC Gazette Notice; his position of Senior Administrative Officer was not a state office under Article 260 of the Constitution and the notice took effect on 8th August, 2017, after his employment had ceased
The SRC Gazette Notice No.6518 listed the county state officers entitled to service gratuity at 31% of basic remuneration for the term served. The offices listed were County Governor, Deputy Governor, Speaker, Members of County Executive Committee, Deputy Speaker and Members of the County Assembly. The claimant's position of Senior Administrative Officer was a public office but not a state office under Article 260. Even assuming he were a state officer, the notice only took effect on 8th August, 2017, after his resignation on 7th February, 2017.
Whether the Council of Governors circular dated 5th September, 2017 entitled the claimant to gratuity
The circular merely reinforced the SRC Gazette Notice and, having been issued after the claimant left employment, was not applicable to him
The court read the Council of Governors circular as reinforcing the SRC Gazette Notice dated 7th July, 2017 effective 8th August, 2017. The circular was issued after the claimant had resigned, and the gratuity therein was for state officers on fixed terms who serve the full term. The claimant resigned mid-term and was not covered.
Whether gratuity was payable in the absence of a contractual, policy or treaty basis
Absent a provision in the contract of service, agreement, private treaty or employer policy, there is no legal basis for a claim of service gratuity
The claimant's contract of appointment dated 2nd January, 2014 contained no clause on payment of gratuity. The respondents' Human Resource Manuals provide that an officer who resigns forfeits all claims to retirement benefits. Gratuity is payable as agreed in the contract or under a collective agreement or established policy; none existed here, so the claim fails.
Entitlement to a certificate of service
The claimant is entitled to a Certificate of Service pursuant to section 51 of the Employment Act, 2007
The court found the certificate of service is due to all employees at the end of employment under section 51 of the Employment Act, 2007. The respondents confirmed it was ready for collection, and the court ordered its issuance as the only successful limb of the claim.
Legal principles established
#- Payment of gratuity is payable only where provided for in the contract of service, a collective bargaining agreement, policy or private treaty, and statutory gazette notices on gratuity for state officers do not apply retrospectively to employees who ceased employment before their effective date
- A certificate of service is due to all employees at the end of employment pursuant to section 51 of the Employment Act
Court orders
#- 1.Claim dismissed as without merit save that the claimant shall be issued with a Certificate of Service pursuant to section 51 of the Employment Act, 2007
- 2.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; claim under contract of service and section 51 of the Employment Act, 2007
Relief refused
#Payment of gratuity of Ksh.1,287,952
The claimant's position of Senior Administrative Officer was not a state office under Article 260; gratuity was not a term of his contract, nor provided by any policy or agreement; and the SRC Gazette Notice and Council of Governors circular took effect after his resignation and cannot apply retrospectively
Interest on the gratuity claim
The gratuity claim failed and therefore no interest was awarded
Costs
Each party shall bear own costs.
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.
The position of Senior Administrative Officer though a public office is not a state office pursuant to Article 260 of the Constitution, 2010.
Even where the claimant was to define himself as a state officer, which is not the case, the SRC notice took effect on 8 th August, 2017. This was after his employment with the respondents had ceased.
Without the parties to the employment contract dated 2 nd January, 2014 providing for payment of service gratuity, there being no agreement or a private treaty or a policy of the respondent to pay such benefit of service gratuity, the claimant has no legal basis or justification to claim the same.
The Circular of the Council of Governors is not applicable to the claimant.
Accordingly, the claim herein is found without merit save the claimant shall be issued with a Certificate of Service pursuant to section 51 of the Employment Act, 2007. Each party shall bear own costs.
Issues in the judgment
#The claimant's pleaded basis for gratuity is a Gazette Notice dated 1st March, 2013, but the notice attached and relied upon in evidence and submissions is dated 7th July, 2017; the judgment records both dates inconsistently
The date of the claimant's letter and notice of resignation is recorded variously as 19th December, 2016 and 19th December, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Mumpasoi Keriolale v Narok County Government & another [2021] KEELRC 1495 (KLR)", Case Analysis (2021). Cause No. 13 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1495/eng@2021-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.