Musembi & 3 others v Machakos County Assembly Service Board (Cause 59 & 103 of 2018 & 60 & 62 of 2023 (Consolidated)) [2024] KEELRC 2829 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent had at all material times employed the claimants
- 2.Whether the claimants are entitled to the remedies as prayed for
Key legal issues
#Identity of the employer of the claimants
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
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.
Entitlement to remedies claimed
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
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.
Legal principles established
#- 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
#- 1.Declaration that the respondent was the sole employer of the claimants
- 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.Respondent to deliver to each claimant a certificate of service by 15.12.2024
- 4.Deputy Registrar to cause return of the court files to the Machakos Sub-registry forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction; Employment Act, 2007 and County Governments Act, Act 17 of 2012 considered
Relief refused
#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
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
Payment in lieu of annual leave
No evidence of days claimed or that leave was not taken
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
Two months' payment in lieu of notice and compensation for unfair termination
Contracts lapsed by effluxion of time; no unfair termination established
NSSF and NHIF refunds
No evidence offered; claimants may pursue under applicable statutory provisions
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
#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.
The abdication of statutory duty cannot amount to escaping the statutory duty as the employer.
1. The declaration that the respondent was the sole employer of the claimants.
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.
3. The respondent to deliver to each claimant a certificate of service by 15.12.2024.
Issues in the judgment
#Judgment uses 'respondent' when referring to claimants (e.g. 'The 3rd respondent pleaded that he was employed...'), an apparent typographical error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.