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ELRCPartially AllowedNot stated in judgment

Musembi & 3 others v Machakos County Assembly Service Board (Cause 59 & 103 of 2018 & 60 & 62 of 2023 (Consolidated)) [2024] KEELRC 2829 (KLR)

Employment and Labour Relations Court
15 November 2024
2,096 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed the County Assembly of Machakos was the sole employer of ward-based Personal Assistants, but most monetary claims failed for lack of evidence.

What this practically means

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Executive summary

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Four claimants sued the County Assembly of Machakos claiming they had been employed as Personal Assistants and Secretaries serving Members of the County Assembly at ward offices under written contracts dated 30.09.2013. They claimed house allowance, commuter allowance, annual leave, overtime, drinking water, gratuity, salary arrears for October 2017 to March 2018, NSSF/NHIF refunds and certificates of service, contending their contracts continued after 08.08.2017 until they were instructed by text to hand over in October 2017. The respondent denied employing them, asserting members of the Assembly had fraudulently issued appointment letters for posts not in the county structure and that contracts had been revoked by the letter of 05.11.2013. The Court found the respondent was the sole employer: it existed as a statutory body under the County Governments Act, and the Board's resolution allowing members to employ their own staff was a mere delegation; the respondent's abdication of statutory human resource functions could not escape its statutory duties as employer. However, the monetary claims largely failed. House allowance was deemed included in gross pay under section 31(1) of the Employment Act; commuter allowance, overtime, water and leave lacked evidence; gratuity was barred by section 35 for NSSF members; salary arrears and notice pay failed because contracts lapsed by effluxion of time on 08.08.2017 with no unfair termination established. The Court entered judgment declaring the respondent the sole employer, ordered certificates of service for each claimant, and awarded each claimant Kshs. 25,000.00 as partial costs of the suit, with interest on default.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent had at all material times employed the claimants
  2. 2.Whether the claimants are entitled to the remedies as prayed for

Key legal issues

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01

Identity of the employer of the claimants

Holding

The respondent, the County Assembly of Machakos through its Service Board, was the sole employer, notwithstanding that members engaged the claimants at ward level under a delegated arrangement

Reasoning

The internal memo of 05.11.2013 revoked appointment letters issued by the Assembly, and exhibited correspondence and Board minutes showed ward staff were public officers within the respondent's human resource powers. The Board Committee's resolution allowing members to employ their own staff was a delegation, and the respondent abdicated, but could not escape, its statutory employer duties. Work performed belonged to the Assembly.

p. 4
02

Entitlement to remedies claimed

Holding

Only the declaration of employment, certificates of service and partial costs were awarded; monetary claims failed for want of evidence and because contracts lapsed by effluxion of time

Reasoning

Claims for house allowance, commuter allowance, overtime, water, gratuity, leave, notice pay and arrears all failed on pleadings, statutory provisions (ss. 31(1) and 35 Employment Act) and lack of rebuttal evidence. Termination was not unfair as contracts lapsed by effluxion of time when Assembly members' terms ended.

p. 4

Legal principles established

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  • An employer's abdication of its statutory human resource duties does not escape the statutory duty as employer
  • There is no legal provision permitting Members of a County Assembly to themselves recruit, appoint, pay and exercise human resource functions over county assembly staff

Court orders

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  1. 1.Declaration that the respondent was the sole employer of the claimants
  2. 2.Respondent to pay each claimant Kshs. 25,000.00 being partial costs of the suit by 01.03.2025, failing which interest at Court rates from the date of judgment until full payment
  3. 3.Respondent to deliver to each claimant a certificate of service by 15.12.2024
  4. 4.Deputy Registrar to cause return of the court files to the Machakos Sub-registry forthwith

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and labour relations jurisdiction; Employment Act, 2007 and County Governments Act, Act 17 of 2012 considered

Relief refused

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House allowance, commuter allowance, overtime and drinking water claims

House allowance deemed included in gross payment; commuter allowance not agreed; overtime and water not justified and no evidence provided

p. 4

Gratuity

Claimants were NSSF members and section 35 of the Employment Act precludes gratuity absent contractual provision; pleaded case was one month's salary per year worked, already paid

p. 4

Payment in lieu of annual leave

No evidence of days claimed or that leave was not taken

p. 4

Salary arrears after 08.08.2017

Contracts lapsed by effluxion of time with the term of the Assembly; no evidence of work after 08.08.2017

p. 4

Two months' payment in lieu of notice and compensation for unfair termination

Contracts lapsed by effluxion of time; no unfair termination established

p. 4

NSSF and NHIF refunds

No evidence offered; claimants may pursue under applicable statutory provisions

p. 4

Costs

Each claimant awarded Kshs. 25,000.00 as partial costs of the suit, payable by 01.03.2025, failing which interest at Court rates from the date of judgment until full payment

Quotable passages

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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 Court finds that the respondent was the sole employer of the claimants.
p. 4Employer identity
The abdication of statutory duty cannot amount to escaping the statutory duty as the employer.
p. 3Employer's statutory duties
1. The declaration that the respondent was the sole employer of the claimants.
p. 4Final orders
2. The respondent to pay each claimant a sum of Kshs. 25,000.00 being partial costs of the suit and to pay by 01.03.2025 failing, interest to be payable thereon at Court rates from the date of this judgment until full payment.
p. 5Final orders - costs
3. The respondent to deliver to each claimant a certificate of service by 15.12.2024.
p. 5Final orders - certificate of service

Issues in the judgment

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minor

Judgment uses 'respondent' when referring to claimants (e.g. 'The 3rd respondent pleaded that he was employed...'), an apparent typographical error

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musembi & 3 others v Machakos County Assembly Service Board (Cause 59 & 103 of 2018 & 60 & 62 of 2023 (Consolidated)) [2024] KEELRC 2829 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2829/eng@2024-11-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.