Kanga v County Public Service Board of Tharaka Nithi County & another (Cause E022 of 2021) [2023] KEELRC 2862 (KLR)
The bottom line
#A county worker sent home on compulsory leave won full unpaid salaries and gratuity totalling over Kshs 5.4 million, while his employer's fraud counterclaim failed.
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 his salaries and allowances for the period 11th September 2017 to 13th August 2019.
- 2.Whether the Claimant is entitled to payment of any gratuity for the six years contract.
- 3.Whether the Respondent's counterclaim is merited.
Key legal issues
#Entitlement to salary for the compulsory leave period
Claimant entitled to unpaid salaries from 11th September 2017 to 13th August 2019
The claimant was sent on compulsory leave, successfully quashed the letter in judicial review but was never allowed to resume work. The employer's denial of work was unlawful, the claimant was acquitted of criminal charges, and the contract lapsed by effluxion of time. Withholding salary amounted to mistreatment contrary to Article 236. Award calculated at pleaded gross pay for 23 months.
Entitlement to service gratuity
Claimant entitled to gratuity at 31% of annual basic pay as per contract
The written contract provided for gratuity on completion. The claimant neither resigned nor was terminated; the contract expired by notice dated 10th June 2019. Although entitled to six years' gratuity, the claimant only prayed for two years and the court awarded only what was pleaded.
Merits of the respondents' counterclaim for Kshs. 11,854,402
Counterclaim dismissed for failure of proof
The respondents bore the burden of proving fraud on a balance of probabilities even without a defence. No Board member testified; no conclusive investigative report was produced; the criminal charge ended in acquittal after four years. The respondents failed to link the claimant to the payroll additions or to prove the appointments lacked Board approval.
Legal principles established
#- An employee wrongfully excluded from work by the employer is entitled to pay for the period even if no duties were performed.
- Public officers may not be subjected to disciplinary action without due process of law under Article 236 of the Constitution.
- Even an unopposed counterclaim must be proved on a balance of probabilities; acquittal on related criminal charges and absence of an investigative report are fatal.
Court orders
#- 1.Payment of all the unpaid salaries and allowances for the months starting 11th September, 2017 to 13th August 2019 totalling to a sum of Kshs. 4,139,885/=
- 2.Payment of a sum of Kshs. 1,337,674.80 being the service gratuity at the rate of 31% of annual basic pay for the two years leading to the expiry of the contract.
- 3.Costs of the suit plus interest at court rate from the date of filing suit.
- 4.The award is subject to statutory payments.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (ELRC employment and labour relations jurisdiction - implied by court, not expressly quoted)
Relief refused
#Claimant's pleaded claim of Kshs. 4,315,080 for unpaid salaries
Court awarded a lesser computed sum based on the pleaded gross pay
Costs
Costs of the suit plus interest at court rate from the date of filing suit, awarded to the claimant.
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.
Consequently, I dismiss the counterclaim and enter judgment for the claimant as follows: a. Payment of all the unpaid salaries and allowances for the months starting 11th September, 2017 to 13th August 2019 totalling to a sum of Kshs. 4,139,885/=
He cannot be denied his legitimate salary on allegation that he did not perform any duties. He resisted the compulsory leave and won the case in court but the employer locked him out of work.
It is a breach of the constitution to mistreat a public officer at work place.
The respondents have burden of proof on balance of probabilities that the claimant committed the alleged fraud. This is so even if no defence was filed by the claimant considering that the criminal case against him was never proved.
Issues in the judgment
#The judgment refers inconsistently to the counterclaim amount and the criminal case number: the counterclaim is pleaded and claimed as Kshs. 11,584,402 but the respondents 'reiterated that the Claimant should pay them the Kshs.11,854,402' and the court's conclusion refers to Kshs. 11,854,402; the criminal case is cited as 'Criminal Cause No. 789 of 2017' in one place and 'Chuka Criminal Case number 789 of 2019' in another.
Paragraph 2 of the judgment erroneously refers to the reliefs sought 'in the petition' when the matter is a Memorandum of Claim; the conclusion repeats this. Also the claimant's pleaded salary figure (Kshs. 4,315,080) is quoted in the introduction but the court computed the award on Kshs. 179,995 x 23 months = Kshs. 4,139,885 without reconciling the two.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanga v County Public Service Board of Tharaka Nithi County & another (Cause E022 of 2021) [2023] KEELRC 2862 (KLR)", Case Analysis (2023). Not stated in the extract provided (Memorandum of Claim dated 1st July 2021, Nyeri ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2862/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.