Muriithi v Office of Auditor - General (Cause 1071 of 2018) [2023] KEELRC 3283 (KLR)
The bottom line
#A Kenyan employer that stopped an employee's pay for three years without firing him was ordered to pay full salary arrears plus interest.
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 remained an employee of the Respondent throughout the period his salary was withheld
- 2.Whether the Respondent was bound by the consent orders of 17th September 2018 to compute and pay salary arrears
- 3.Whether withholding the Claimant's salary for three years without terminating his contract was lawful and fair
- 4.Whether the Claimant was entitled to the arrears of salary pleaded, a restraining order, interest and costs
Key legal issues
#Continuity of the employment relationship
The Claimant remained an employee throughout; his contract was never terminated despite allegations of desertion
Both parties' evidence confirmed employment was never terminated. The Human Resource Manager confirmed no disciplinary hearing was held and the contract was not terminated. The Transport Manager confirmed he did not assign the Claimant any work through the work-ticketing system from 2015 to 2018. The Claimant was therefore available for work and for disciplinary proceedings, and the mutual obligations of the contract remained intact.
Legality of withholding salary
Withholding the salary for three years while the contract subsisted was illegal and unfair
Since the contract was never terminated and the Respondent never established that the Claimant was away without leave or lawful cause, the Respondent had no legal basis to suspend the salary from February 2015 until reinstatement in 2018. The Claimant had also replied to the show-cause letters but was never invited to a disciplinary hearing.
Effect of the consent orders of 17th September 2018
The consent obliged the Respondent to compute and pay arrears; failure to do so left the Claimant's pleaded computation uncontroverted
The Respondent's counsel initially claimed ignorance of the consent orders but later confirmed their existence. The Respondent never computed the arrears nor filed an alternative computation. At the time of the consent it was not in dispute that arrears were payable, so the Court adopted the Claimant's pleaded figure of Kshs. 2,066,359.
Legal principles established
#- An employer may not withhold an employee's salary indefinitely where the contract of employment remains in force and was never terminated
- Where an employer fails to assign duty to an available employee, it cannot fault the employee for non-performance of duties
- Matters resolved by consent of the parties should not be re-litigated in the main claim
Court orders
#- 1.Declaration that withholding of the Claimant's salary by the Respondent for 3 years, during the subsistence of his contract of employment, was illegal and unfair
- 2.The Respondent shall pay the Claimant arrears of salary at Kshs. 2,066,359
- 3.Interest allowed at court rate from 17th September 2018
- 4.No order on the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (employment claim under statute, contract and the Constitution)
Relief refused
#Order restraining the Respondent from victimising the Claimant
No evidence of subsequent discrimination or victimisation; the Claimant had been reinstated
Costs of the Claim
The Court made no order on costs
Costs
No order on the costs - each party to bear their 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.
It is declared that withholding of the Claimant's salary by the Respondent for 3 years, during the subsistence of his contract of employment was illegal and unfair.
The Respondent shall pay to the Claimant arrears of salary at Kshs. 2,066,359.
Interest allowed at court rate, from 17th September 2018.
No order on the costs.
The Respondent can only blame itself, for not terminating the Claimant's contract, and for not assigning him duty, while it is acknowledged that he was available.
It was unfortunate that the Respondent subsequently appeared before the Court, alleging to have no knowledge of orders recorded by consent, in the presence of Parties' Advocates
Issues in the judgment
#The judgment's cause number, parties' full names and date of the consent-implementation chronology are not printed; also internal dates: the judgment states treatment at Nanyuki Referral Hospital from 11th February 2015 after a headache said to have developed on 15th February 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriithi v Office of Auditor - General (Cause 1071 of 2018) [2023] KEELRC 3283 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3283/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.