Esevwe & 57 others v University Of Nairobi (Cause 511 of 2016) [2022] KEELRC 4117 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employer can recover allowances paid by mistake, and non-unionised staff cannot claim benefits negotiated under a union CBA.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was discrimination against the claimants
- 2.Whether the court should review the salary structures within the respondent
- 3.Whether the orders sought should issue
- 4.Who should pay costs
Key legal issues
#Whether the claimants were discriminated against in respect of house allowance
No discrimination established. The claimants did not particularise the comparators said to have been treated differently, and the differential treatment was justified by unionisation and lawful pay structures.
The court applied section 5 of the Employment Act and Article 27 of the Constitution, holding that discrimination requires two similarly situated persons treated differently without justification. The claimants' statement of claim did not articulate particulars. Further, placing a higher house allowance for unionised employees as against unionisable employees who have not joined the union did not amount to unfair discrimination.
Whether the enhanced house allowance of Ksh 17,013 was payable
The payment was an accounting error, unlawful and recoverable. The lawful house allowance is 15% of basic wage under the Wage Orders unless negotiated in a registered CBA.
The respondent admitted an accounting error from October 2015 and rectified it under section 19(1)(e) of the Employment Act, which permits deduction of amounts paid in error or in excess of wages due. The Ksh 17,013 was not provided for under the Wage Orders nor approved by the SRC. The claimants, not being unionised, cannot claim under the CBA or return to work formula.
Whether the court should review the respondent's salary structure
No. Salary reviews in the public sector require SRC advisory; the court cannot impose a structure absent SRC approval.
The claimants conceded the respondent is a public entity funded by taxpayers. The SRC is the repository of government advisory on salaries and remuneration payable from public funds, mandated to harmonise public sector salaries. Increasing house allowances was not within the respondent's single power before SRC advice was secured, and no SRC approval was evidenced.
Legal principles established
#- Discrimination against an employee must relate to two similarly situated persons/groups treated differently without justification, and the acts of discrimination must be particularised.
- A payment made to an employee in error is recoverable; an error cannot result in a variation of the employment contract and cannot be justified under section 10(5) of the Employment Act.
- The minimum wage under the Regulation of Wages (General) (Amendment) Orders attracts a house allowance of 15% of the basic wage; anything above must be negotiated under a registered CBA.
- The SRC is the repository of government advisory on salaries and remuneration payable out of public funds; public sector salary reviews require its advisory before being lawfully made.
Court orders
#- 1.Claim dismissed - no underpayment of house allowance as claimed established
- 2.Payments made pursuant to the interim orders of February 16, 2017 to suffice and revert to a house allowance at 15% of the due basic wage unless revised under a CBA
- 3.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 Court Act and Article 162(2) of the Constitution (employment and labour relations matter); not expressly cited
Relief refused
#Declaration that the reduction of house allowance was discriminatory, unlawful, null and void
No discrimination established; the enhanced payment was an accounting error recoverable under section 19(1)(e) of the Employment Act
Declaration that house allowance should be Ksh 20,416 per the March 19, 2014 agreement
The claimants are not unionised and the CBA/return to work formula does not directly apply to them; the lawful house allowance is 15% of basic wage
Declaration that the respondent establish a salary structure factoring experience, skills and qualification
No evidence that the SRC approved any salary increase or review of house allowance; SRC advisory is imperative for public sector reviews
Injunction to compel payment of underpaid house allowance arrears at Ksh 20,416 and restraint against interference
There is no underpayment of house allowance as claimed
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.
On the orders sought, there is no underpayment of a house allowance as claimed. Parties can review the employment terms in future CBA negotiations and/or upon a review and approval by the Salaries and Remuneration Commission. Each party shall bear own costs.
A payment to an employee done in error hence appreciated was recoverable. Payment in error in employment and labour relations is not a wag increment or a review of the terms and conditions of employment.
The applicable rate is 15% of the basic wage and to expect more, such must be negotiated under a CBA registered with the court.
It does not necessarily mean that the respondent unfairly discriminated against them by placing a higher house allowance for unionised employees as against unionisable employees who have not joined the union.
Issues in the judgment
#The date of the return to work formula is inconsistently stated as March 19, 2014 in most passages and March 13, 2014 in the submissions paragraph, and as March 19, 2019 in one passage.
The figure for the reduced house allowance is stated as Ksh 10,317 in one passage and Ksh 10,000 in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esevwe & 57 others v University Of Nairobi (Cause 511 of 2016) [2022] KEELRC 4117 (KLR)", Case Analysis (2022). Not stated in the judgment (ELRC Cause, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4117/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.