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Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause No. E1025 of 2024

Zilpa Auma Ayara v The Kenya Power & Lighting Company Limited

Employment & Labour Relations Court of Kenya
29 September 2026
8,444 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya Power must pay a former employee over Kshs 2.3 million in acting allowance after letting her act in a senior role for years without confirmation or pay.

What this practically means

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Executive summary

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The Claimant, employed by Kenya Power from 1987, was appointed to act as Chief Officer in charge of the National Contact Centre by letter dated 6th April 2018, expressly pending substantive filling of the position. She claimed she was never confirmed nor paid acting allowance for years, sought declarations of confirmation by operation of law, MG 06 salary arrears of over Kshs 33 million, acting allowance of Kshs 3 million, discrimination damages, and a corrected retirement certificate. The Respondent denied continuous acting, pleaded a recruitment freeze, documented allowance payments, and raised limitation under section 90 of the Employment Act and the Public Authorities Limitation Act. The court found the employment relationship and the acting appointment of 6/4/2018 undisputed. It held the letter of 2/10/2020 superseded previous engagements, ending the acting appointments, but that between 6/4/2018 and 2/10/2020 the Claimant was entitled to acting allowance which the Respondent never paid despite her request. The court held the employer could not rely on its own six-month manual limit to benefit from its mistake in allowing acting beyond six months. The non-payment was characterised as a continuing injury, defeating the limitation objection. Based on the Respondent's admission of payment from January 2023, a further 26 months' allowance was awarded, totalling Kshs 2,388,208 less statutory deductions. The claims for confirmation to a substantive position and for discrimination were dismissed - the latter as unproved. The Respondent was ordered to pay costs plus interest at court rates from the date of judgment.

Questions the Court framed

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

  1. 1.Whether the Claimant acted as Chief Officer in Charge of the National Contact Centre continuously from 6th April 2018 to 14th April 2024 and is entitled to acting allowance
  2. 2.Whether the claims for acting allowance for the periods 6th April 2018 to 27th May 2020 and 28th May 2020 to 31st December 2022 are time-barred under section 90 of the Employment Act, 2007
  3. 3.Whether the Claimant had a legitimate expectation to be confirmed to the position of Chief Officer upon lapse of the six-month acting period
  4. 4.Whether the Claimant was substantively confirmed to the position of Chief Officer by operation of law and is entitled to full pay of job group MG 06
  5. 5.Whether the Claimant was discriminated against on grounds of sex and denied career progression, amounting to unfair labour practices under Article 41 of the Constitution
  6. 6.Whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Entitlement to acting allowance beyond six months

Holding

The Claimant was entitled to acting allowance for the 30 months to 2/10/2020 and, based on the Respondent's admission, a further 26 months to December 2022

Reasoning

The court found the Claimant acted in the position from 6/4/2018 and was entitled to acting allowance, which the Respondent never paid despite her request of 9/8/2018. Section C14(1) of the HR manual limits acting allowance to 20% for six months, but the court held the employer cannot rely on its own manual to benefit from its mistake in allowing acting beyond six months. RW1's admission of payment from January 2023 grounded the further award.

p. 39
02

Limitation - continuing injury

Holding

The claim was not time-barred; non-payment of acting allowance was a continuing injury constantly raised by the Claimant

Reasoning

The Respondent pleaded limitation under section 90 of the Employment Act and section 3(2) of the Public Authorities Limitation Act. The court held the non-payment was always raised by the Claimant, who promptly filed suit in 2024 upon retirement in the same year, characterising the non-payment as a continuous injury she constantly raised and was denied.

p. 40
03

Confirmation by operation of law and legitimate expectation

Holding

The Claimant was not substantively confirmed and had no entitlement to MG 06 remuneration

Reasoning

The court found the claim for confirmation to a substantive position without merit given the government policy on employment which the Respondent was bound to adhere to. The acting appointment was expressly pending substantive filling of the position, and the letter of 2/10/2020 superseded previous engagements, ending the prior appointments.

p. 41
04

Discrimination

Holding

Discrimination was not proved and the claim was disregarded

Reasoning

The Claimant's gender report covered the entire Respondent workforce and did not speak to her individually; no comparator evidence linked her treatment to her gender. The court found the discrimination claim unproved and disregarded it, consistent with the Respondent's submission that the audit report addressed the wider workforce without reference to her.

p. 41

Legal principles established

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  • Where an employer allows an employee to act beyond the six-month limit in its own manual, it is liable to pay the acting allowance and cannot rely on its own manual to escape liability
  • Non-payment of acting allowance repeatedly raised and denied constitutes a continuing injury for limitation purposes

Court orders

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  1. 1.The Respondent to pay the Claimant 30 months' acting allowance of Kshs 1,235,280
  2. 2.The Respondent to pay a further 26 months' acting allowance of Kshs 1,152,928, total acting allowance of Kshs 2,388,208 less statutory deductions
  3. 3.The Respondent to pay costs of the suit plus interest at court rates from the date of judgment

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 Court Act, section 12(4) (employment and labour relations dispute)

Relief refused

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Declaration that the Claimant was substantively confirmed as Chief Officer and entitlement to MG 06 salary, allowances and benefits (Kshs 33,197,688)

Claim found without merit given the government policy on employment which the Respondent was bound to adhere to

p. 41

Compensation for discrimination

Discrimination was not proved

p. 41

Reissuance of retirement certificate reflecting her roles

Not addressed in the final orders; claim for confirmation and discrimination failed

Costs

The Respondent to pay costs of the suit plus interest at court rates with effect from the date of this judgment

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.

However, where the respondent let the claimant continue to act beyond the 6 months, then they are liable to pay her and cannot continue to rely on their own manual and benefit from their own mistake.
p. 40Employer cannot rely on its own manual to avoid acting allowance liability
The claim in my view falls under a continuous injury which she constantly raised and was denied.
p. 40Continuing injury and limitation
I do find that the claimant is entitled to the 30 months’ acting allowance which translates to 30x20/100x205,880= kshs 1,235,280.
p. 40Award of acting allowance
Total acting allowance not paid then totals = kshs 2,388,208/- less statutory deductions.
p. 41Final award
The respondents will also pay costs of this suit plus interest at court rates with effect from the date of this judgment.
p. 41Costs and interest - final orders

Issues in the judgment

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material

Judgment dated 29th September 2026 despite cause filed 2024 and citation of a 2026 authority

material

Respondent pleaded allowance authorisations from 11th February 2019 yet RW1 testified payment began March 2023

minor

Court refers to a memo 'dated 11 th March 2023' earlier described as dated 11th February 2019

minor

RW1 witness statement drafting error using first person 'my evidence in chief'

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, "Zilpa Auma Ayara v The Kenya Power & Lighting Company Limited", Case Analysis (2026). ELRC Cause No. E1025 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2631/eng@2026-09-29

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