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Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause No. 769 of 2019

Shem Andrew Gichimu v Higher Education Loans Board

Employment & Labour Relations Court
5 October 2026
5,415 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that HELB must pay a reinstated employee full salary increments, benefits, interest and properly computed tax, not just a lump sum.

What this practically means

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Executive summary

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This ruling by Wasilwa J of the Employment and Labour Relations Court at Nairobi determines a Notice of Motion dated 19th November 2025 by Shem Andrew Gichimu, former Chief Finance Officer of the Higher Education Loans Board, seeking clarification under Rule 74(1)(c) of the ELRC (Procedure) Rules of the judgment of Ongaya J dated 16th November 2023, which declared his termination null and void, ordered reinstatement with back payment of Kshs 26,247,054.50 less PAYE and compensation of Kshs 10,000,000 for discrimination, and directed that he be treated as if the contract of employment had not been terminated at all. The Applicant contended the Respondent underpaid him by omitting annual salary increments, leave allowance, airtime, gift vouchers, bonus, pension adjustments and by applying a flat 35% PAYE rate rather than monthly progressive bands. The Respondent, through the affidavit of CEO Geoffrey Monari, maintained it fully complied with the decree, that the application sought impermissibly to vary a final judgment, that facilitative allowances were not payable for a period when no services were rendered, and that tax disputes lie with KRA. The Court declined to quantify the disputed sums itself but held the judgment was clear and set out seven matters to guide computation, including increments, interest, costs, other contractual benefits and tax computation, urging the parties to work together. Costs were awarded in the cause.

Questions the Court framed

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

  1. 1.Whether Order (2) of the Judgment of 16th November 2023 has been fully complied with or requires payment of full salary progression, allowances and benefits with interest thereon
  2. 2.Whether the Respondent was obligated to apply proper statutory and PAYE computations to the decretal sum
  3. 3.Who bears the costs of the application

Key legal issues

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01

Scope of the directive that the claimant be treated as if the contract of employment had not been terminated at all

Holding

The judgment of Ongaya J was clear; in computing what is payable, the Respondent must consider increments, accrued interest, costs and other benefits payable under the contract to place the applicant as if never terminated.

Reasoning

The Court reviewed the judgment of 16th November 2023 and its award of reinstatement with full back payment less PAYE plus discrimination compensation. Rather than quantifying the disputed benefits itself, it listed seven heads to be considered in computation, including annual increments, interest on late payment, costs and other contract benefits, effectively endorsing a continuous-employment reading of order (2).

p. 27
02

Tax (PAYE) computation of the back pay lump sum

Holding

The Court directed that tax computation must ensure adherence to the judgment as delivered, without ruling definitively on whether the flat 35% deduction was lawful.

Reasoning

The Applicant argued the Respondent erred by applying a flat 35% PAYE rate on the lump sum instead of monthly progressive bands under the Income Tax Act; the Respondent contended tax disputes lie with KRA and the Court lacks jurisdiction. The Court did not resolve the jurisdictional challenge but included tax computation among the matters to be considered, deferring the mechanics to the parties.

p. 27
03

Whether the application under Rule 74(1)(c) was competent or a disguised review

Holding

The Court entertained the application as one seeking clarification and offered guidance, without finding it an abuse of process or outside Rule 74.

Reasoning

The Respondent argued the application sought to vary, enlarge and reopen a final judgment, that the Court was functus officio, and that quantified back pay exhausted the monetary effect of order (2). The Court did not expressly determine these objections; it treated the application as seeking clarity and provided an interpretive framework for the parties.

p. 26

Legal principles established

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  • A reinstatement order treating an employee as if the contract had not been terminated requires computation of increments, interest, costs and other contractual benefits to restore the employee to the position he would have occupied

Court orders

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  1. 1.Guidance issued on the seven matters to be considered in computing what is payable under the judgment of 16th November 2023, including increments, interest, costs, other contract benefits and tax computation
  2. 2.Parties urged to work together and ensure what is payable has been done
  3. 3.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 74(1)(c) of the Employment and Labour Relations Court (Procedure) Rules

Relief refused

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Order for additional payment over and above the decretal amount already paid

The Court declined to make a fresh monetary award, instead giving guidance for the parties to compute what is payable jointly

p. 27

Costs

Costs in the cause

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 parties are urged to work together and ensure what is payable has been done. Costs in the cause.
p. 27Final orders and disposition
Whether any increments have been considered over the period to ensure the applicant was to be put in same position as if he had never been terminated.
p. 27Scope of reinstatement order
How tax was to be computed in order to ensure adherence to the judgment as delivered.
p. 27PAYE computation of back pay
The period within which the moneys were paid and if any further interest accrued on it.
p. 27Interest on late payment of decretal sums

Issues in the judgment

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material

Contradictory date of Ongaya J's judgment: 16 November 2023 versus 19 November 2025

minor

Back pay figure stated inconsistently as Kshs 26,247,054.50 and Kshs 26,247,054/-

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, "Shem Andrew Gichimu v Higher Education Loans Board", Case Analysis (2026). ELRC Cause No. 769 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2759/eng@2026-10-05

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