Njoroge & 36 others v University of Nairobi (Cause E378 of 2023 & E458 of 2022 (Consolidated)) [2025] KEELRC 797 (KLR)
The bottom line
#The Employment Court dismissed drivers' challenge to a reduced house allowance and the University's refund claim, ruling compliance with a court order isn't unilateral variation.
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's unilateral reduction of the Claimants' house allowance was lawful?
- 2.Whether the subject matter of house allowance Kshs 17,013/- is a right or a benefit to the Claimants?
- 3.Whether the Claimants were entitled to a house allowance Kshs 17,013/- duly negotiated by a Union they are not subscribing to its membership?
- 4.Whether the Claimants were heard before the contested house allowance was adjusted to 15% of basic salary?
- 5.Whether the Claimants are required to refund public funds paid to them in error above the 15% of basic salary?
- 6.Whether the Cause is res judicata
Key legal issues
#Res judicata / fresh cause of action
The Respondent's reduction of house allowance pursuant to the judgment in Cause No. 511 of 2016 did not create a fresh cause of action; the present Cause was an attempt to relitigate a matter already decided.
The letters of 21 June 2022 reducing house allowance to 15% of basic salary expressly implemented the ruling in Cause No. 511 of 2016, particularly paragraph 55 of the judgment. The Court had already declared itself on the legality of varying the house allowance. A party dissatisfied with that finding should have appealed to the Court of Appeal; this Court cannot revisit, recall or review its own finding.
Unilateral variation of a term of contract under section 10(5) of the Employment Act
The variation was not a unilateral variation prohibited by section 10(5) because it was made on the strength of a court order.
Section 10(5) fetters unilateral variation of remuneration and benefits, but the Respondent's decision was purportedly made pursuant to a direction by the Court in its judgment of 19 May 2022 that payments revert to a house allowance at 15% of basic wage unless revised under a CBA. Compliance with a court order falls outside section 10(5).
Limitation of the Counterclaim
The Counterclaim for recovery of overpaid house allowance was time-barred and dismissed.
The Counterclaim sought payments alleged to have been erroneously made in 2015 or before. The Cause was filed on 11 May 2023 and the Counterclaim on 8 June 2023, more than three years after the alleged cause of action accrued, and section 90 of the Employment Act, 2007 prescribes a 3-year limitation period for such claims.
Legal principles established
#- A decision taken in compliance with a court judgment does not constitute a fresh cause of action and is not subject to the unilateral-variation fetters of section 10(5) of the Employment Act, 2007
- A party aggrieved by a court finding should appeal rather than seek re-litigation in a fresh cause
Court orders
#- 1.The Causes and Counterclaim are both dismissed
- 2.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 over employment disputes (Cause consolidated by order of the Principal Judge of 7 December 2023)
- Consolidated with
- Nairobi Cause No. E458 of 2022, Frank Esevwe v University of Nairobi
Relief refused
#Claimants' claim for wrongful and unjustified deduction of house allowance
The Respondent's decision was contingent on the Court's judgment of 19 May 2022 and did not constitute a fresh cause of action
Respondent's Counterclaim for refund of overpaid house allowance
Time-barred under section 90 of the Employment Act, 2007
Costs
None of the parties have succeeded. Each party to 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.
The Causes and Counterclaim are both dismissed.
None of the parties have succeeded. Each party to bear own costs.
the decision of the Respondent through the letters dated 21 June 2022 was contingent on the Court's judgment delivered on 19 May 2022 and did not constitute a fresh cause of action
If the Claimants were not satisfied with the finding, the appropriate option would have been to appeal to the Court of Appeal. It is not open to this Court to revisit, recall or review the finding.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge & 36 others v University of Nairobi (Cause E378 of 2023 & E458 of 2022 (Consolidated)) [2025] KEELRC 797 (KLR)", Case Analysis (2025). Cause filed 15 May 2023 (consolidated with Nairobi Cause No. E458 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/797/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.