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ELRCPartially AllowedHoma Bay Chief CMELRC No. E007 of 2023 (appeal)

Raksha International Medical Services Meditirina Hospital Rai International Medical Services v Ogetange (Appeal E038 of 2024) [2025] KEELRC 1805 (KLR)

Employment and Labour Relations Court
19 June 2025
1,926 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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A Kenyan employment appeal court ruled that a contract with a consolidated salary excludes a separate house allowance award, but otherwise upheld the employee's win.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu, presided over by Nzioki Wa Makau, J, against the judgment of Hon. Jacinta A. Orwa (CM) delivered on 31st May 2024 in Homa Bay Chief CMELRC No. E007 of 2023. The Trial Court had awarded the Respondent (employee) unpaid house allowance of Kshs. 63,000/-, unpaid salary for October to December 2021 and August 2022, compensation for public holidays worked, a certificate of service, costs and interest. The Appellant (employer) appealed on numerous grounds, chiefly that the salary was consolidated, that leave had been taken, and that the Trial Court wrongly shifted the burden of proof. The appeal was canvassed by written submissions. The Court first addressed the raising of a new ground (consolidated salary) in submissions without leave, applying Margaret Njeri Mbugua v Kirk Mweya Nyaga, holding that a first appellate court may consider grounds outside the memorandum of appeal where the affected party has had sufficient opportunity to address them. On the merits, the Court held that since the exhibited contract provided for a consolidated salary, the Trial Magistrate erred in awarding house allowance, and reversed the Kshs. 63,000/- award on that head. On burden of proof, the Court held that the Employment Act (sections 5(7), 10(7) and 47(5)) properly places the burden on the employer. The judgment was partly set aside only as to house allowance; the rest was upheld, and each party was ordered to bear its own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether the trial court erred in awarding house allowance despite a consolidated salary
  2. 2.Whether the trial court erred in awarding leave allowance
  3. 3.Whether the trial court wrongly shifted the burden of proof to the Appellant

Key legal issues

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01

Consolidated salary and house allowance

Holding

The award of Kshs. 63,000/- house allowance was reversed because the contract provided for a consolidated salary

Reasoning

The contract exhibited before the Court expressly stipulated a consolidated salary of Kshs. 35,000/-. Under section 31(2) of the Employment Act a contract that expressly consolidates house allowance in the wage excludes a separate house allowance claim. The Trial Magistrate's award contradicted the express contractual provision and was set aside on this head only.

p. 4
02

Shifting of the burden of proof in employment claims

Holding

The Employment Act expressly shifts the burden of proof to the employer in specified circumstances

Reasoning

The Appellant objected that the Trial Court wrongly shifted the burden of proof to it. The Court held that under sections 5(7), 10(7) and 47(5) of the Employment Act the burden properly rests on the employer as custodian of employment records to prove payment or disprove the employee's allegations, so the Magistrate did not err.

p. 4
03

New grounds raised at submission stage

Holding

A first appellate court may entertain grounds not in the memorandum of appeal if parties had sufficient opportunity to address them

Reasoning

Relying on Margaret Njeri Mbugua v Kirk Mweya Nyaga, the Court held that Order 42 Rule 4 permits consideration of new grounds where the affected party has had sufficient opportunity to contest them. The consolidated salary ground was raised without leave and the Respondent lacked a full chance to address it, influencing the denial of costs.

p. 4

Legal principles established

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  • Where a contract of employment expressly provides for a consolidated salary, an award of house allowance on top of it is unwarranted
  • A first appellate court may consider grounds not set out in the memorandum of appeal provided parties have sufficient opportunity to address them

Court orders

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  1. 1.Judgment of the Learned Hon. Jacinta A. Orwa (CM) in Homa Bay Chief CMELRC No. E007 of 2023 is partly set aside in regard to the award of house allowance
  2. 2.The rest of the decision is upheld in its entirety
  3. 3.Each party to bear their own costs of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court (Homa Bay), ELRC
Homa Bay Chief CMELRC No. E007 of 2023
Jurisdiction invoked
First appellate jurisdiction over subordinate court decision under the Employment and Labour Relations Court Act and Civil Procedure Act (not expressly cited)

Relief refused

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Setting aside the entire judgment of the Trial Court

Only the house allowance award was found erroneous; the balance of the decision was sound

p. 5

Costs of the appeal to the Appellant

The consolidated salary ground was raised at the last moment without leave

p. 5

Costs

The parties will each bear their own costs for this appeal.

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.

Judgment of the Learned Hon. Jacinta. A. Orwa (CM) in Homa Bay Chief CMELRC No. E007 of 2023 is partly set aside in particular, in regard to the award of house allowance. The rest of the decision is upheld in its entirety. The parties will each bear their own costs for this appeal.
p. 5Final orders - partial setting aside and costs
The appellate Court is duty bound to revisit and exhaustively re-evaluate and reexamine the evidence presented before the trial court to arrive at its own independent conclusions
p. 4Duty of a first appellate court
The contract exhibited provided for a consolidated salary and as such, the Learned Trial Magistrate was incorrect in not upholding it.
p. 4Consolidated salary excludes separate house allowance

Issues in the judgment

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minor

The judgment identifies the Respondent with both male and female pronouns, and the trial court judge is referred to as 'Learned Hon. Jacinta. A. Orwa' with inconsistent punctuation

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, "Raksha International Medical Services Meditirina Hospital Rai International Medical Services v Ogetange (Appeal E038 of 2024) [2025] KEELRC 1805 (KLR)", Case Analysis (2025). Homa Bay Chief CMELRC No. E007 of 2023 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1805/eng@2025-06-19

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