[2022] KEELRC 699 (KLR)
The Petitioners failed to establish any contractual or statutory entitlement to gratuity. The letter relied upon was a letter of comfort and did not form part of the Petitioners' terms and conditions of service. The Salary and Remuneration Commission Circular applied only to members of the County Public Service...
Source-derived case information.
- Citation
- [2022] KEELRC 699 (KLR)
- Parties
- Applicant: Charles Nyamohanga Nyangi; Applicant: Mary Motongori Gikuuri; Applicant: Ronald Kinap Asiga; Applicant: Roseline Adhiambo Oyugi; Applicant: Anna Otaigo Bunyinge; Applicant: Zainabu Nechesa Masayie; Applicant: Joseph Hoyo Mogosi; Applicant: Rahab Robi; Respondent: Migori County Assembly; Respondent: County Government of Migori
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 46 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed with costs to the 1st respondent
- Legal Topics
- Gratuity Entitlement, Breach of Contract, Public Service Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Nyamohanga Nyangi
Applicant
Mary Motongori Gikuuri
Applicant
Ronald Kinap Asiga
Applicant
Roseline Adhiambo Oyugi
Applicant
Anna Otaigo Bunyinge
Applicant
Zainabu Nechesa Masayie
Applicant
Joseph Hoyo Mogosi
Applicant
Rahab Robi
Applicant
Migori County Assembly
Respondent
County Government of Migori
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the Petitioners were entitled to gratuity payments after serving as members of the County Assembly.
- 2 Whether the Respondents breached any contractual or statutory obligation to pay gratuity to the Petitioners.
- 3 Whether the Salary and Remuneration Commission Circular applied to the Petitioners.
Ratio Decidendi
The Petitioners failed to establish any contractual or statutory entitlement to gratuity. The letter relied upon was a letter of comfort and did not form part of the Petitioners' terms and conditions of service. The Salary and Remuneration Commission Circular applied only to members of the County Public Service Board and from 2018, whereas the Petitioners were members of the County Assembly whose terms ended in 2017. No evidence was provided to show that the Petitioners fell within the scope of the Circular or any other legal provision entitling them to gratuity. The Court found the Petition to be without merit and dismissed it with costs.
Court Disposition
petition dismissed with costs to the 1st respondent
Orders
- The Petition is dismissed with costs to the County Assembly.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
PETITION NO. 46 OF 2019
CHARLES NYAMOHANGA NYANGI 1st PETITIONER
MARY MOTONGORI GIKUURI 2nd PETITIONER
RONALD KINAP ASIGA 3rd PETITIONER
ROSELINE ADHIAMBO OYUGI 4th PETITIONER
ANNA OTAIGO BUNYINGE 5th PETITIONER
ZAINABU NECHESA MASAYIE 6th PETITIONER
JOSEPH HOYO MOGOSI 7th PETITIONER
RAHAB ROBI 8th PETITIONER
v
MIGORI COUNTY ASSEMBY 1st RESPONDENT
COUNTY GOVERNMENT OF MIGORI 2nd RESPONDENT
JUDGMENT
1. The 8 Petitioners sued the County Assembly of Migori (the County Assembly) and the County Government of Migori (the County Government) on 6 December 2019, alleging breach of contract in that the County Assembly and the County Government had failed to pay them gratuity after serving terms as members of the County Assembly.
2. The County Assembly filed a Memorandum of Appearance through the firm of Odhiambo Kanyangi & Co Advocates but did not file a Response to the Petition.
3. The County Government did not file a Memorandum of Appearance or Response.
4. On 18 November 2021, the Court directed the parties to file and exchange submissions and the Petitioners filed joint submissions on 29 December 2021 (the Respondents did not file any submissions).
5. The Court has considered the record, Petition, affidavit in support and the submissions.
6. In alleging breach of contract in the failure to pay gratuity, the Petitioners asserted that the County Assembly had through a letter dated 7 May 2013 indicated that they would be entitled to gratuity at the rate of 31% of annual basic salary for every year served.
7. The Court has looked at clause 3 of the letter.
8. It was addressed to Equity Bank Ltd and assured it that the 3rd Petitioner was entitled to the payment of gratuity at the end of his term. In the view of the Court, the letter was one of comfort and did not serve to alter or add to the Petitioners terms and conditions of service.
9. The Petitioners also filed with their submissions an extract of a Circular dated 8 December 2017 from the Salary and Remuneration Commission wherein they highlighted paragraph (f) which provided that:
Retirement benefit: To be paid a service gratuity at the rate of 31% of annual retainer remunerative package for part time members of CPSB or 31% of the annual basic remunerative package for full part members for the term served.
10. For whatever it is worth (evidence should not be sneaked in with submissions), the Circular appears to apply to members of a County Public Service Board.
11. The Petitioners were not and did not provide any evidence that they were members of the County Public Service Board (they were members of the legislative wing under the County Assembly Service Board), and the Circular cannot aid their legal enterprise.
12. The Court also notes that the terms in the Circular were to be implemented from 2018, whilst the Petitioners terms ended in 2017.
13. The Petitioners also sneaked into the record with the submissions an extract of a document which was not disclosed. The extract states that its terms were to become effective 8 August 2017 and that it would apply to state officers in the Executive of the National Government.
14. From the material on record, the Petitioners were not state officers within the Executive.
15. To all intents and purposes, the Petition herein was a mischievous attempt to claim what the Petitioners were not entitled to using the Court system. The Court declines to approve of such an attempt.
16. Lastly, although camouflaged as a constitutional Petition, the pleadings did not raise any constitutional dispute. It is also doubtful, in the view of the Court, whether the Petitioners sued the correct parties.
Conclusion and Orders
17. From the foregoing, the Court finds the Petition without merit and it is dismissed with costs to the County Assembly.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 23RD DAY OF FEBRUARY 2022.
RADIDO STEPHEN, MCIArb
JUDGE
Appearances
For Petitioners Nyabena Alfred & Co. Advocates
For 1st Respondent Odhiambo Kanyangi & Co. Advocates
2nd Respondent did not participate
Court Assistant Chrispo Aura