https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2138

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. E088 OF 2025** JOHN APOLLO OLOO……………………………………….**CLAIMANT** **VERSUS** HOMA BAY COUNTY GOVERNMENT……..………..….**RESPONDENT** **JUDGMENT** 1. The Claimant instituted this suit by a Memorandum of Claim dated 26th September 2025 alleging breach of contract and non-payment of gratuity. He avers that he was employed by the Respondent as Chief of Protocol on a fixed-term contract running from 1st February 2018 to 30th September 2022. Under the terms of the contract, he was entitled to a basic monthly salary ranging from Kshs. 109,089/- to Kshs. 144,928/- together with service gratuity equivalent to 31% of his basic salary for the period served. According to the Claimant, his basic salary at the expiry of the contract stood at Kshs. 140,440/-. He states that upon successfully completing his contract, he cleared with the Respondent and was formally released on 12th October 2022, whereupon he expected payment of his gratuity. However, despite making several demands, particularly through letters dated 18th December 2024 and 6th January 2025, the gratuity remained unpaid. Having served the Respondent for a total of 56 months, the Claimant contends that he is entitled to gratuity amounting to Kshs. 2,438,038.40, being 31% of his monthly basic salary of Kshs. 140,440/- for the period served. Consequently, he seeks the following reliefs: * + 1. A declaration that the Respondent is in breach of the Contract dated 12th January, 2018; 2. A declaration that the Respondent is bound to pay the gratuity owed; 3. Payment of outstanding gratuity in the sum of Kshs. 2,438,038.40/-; 4. Exemplary damages for breach of contract; 5. Costs of the suit; 6. Interest on the gratuity from 30th September, 2022, until payment in full; and 7. Any other relief the Court may deem fit 2. The Respondent opposed the claim through an Amended Response to the Memorandum of Claim and Counterclaim dated 19th February 2026. While admitting that the Claimant was entitled to gratuity, it disputes the computation advanced by the Claimant. It contends that the Claimant commenced employment on a basic salary of Kshs. 109,089/- and that the correct gratuity payable amounted to Kshs. 1,112,145.28/-. The Respondent further avers that the gratuity has since been paid in full, thereby discharging all its contractual obligations and negating any allegation of breach of contract. 3. In its Counterclaim, the Respondent avers that although the Claimant's contract expired on 30th September 2022, he continued receiving salary for a further three months without any contractual basis. It contends that the Claimant unlawfully received a net monthly salary of Kshs. 145,124.65, resulting in an overpayment of Kshs. 435,373.95. Accordingly, the Respondent seeks: * + 1. A declaration that the Claimant breached his contract of employment, 2. An order compelling him to refund the sum of Kshs. 435,373.95/-, 3. Costs of the suit, 4. Interest on the overdrawn salary and costs of the suit; and 5. Any other relief the court may deem fit. 4. In his Reply to the Amended Response and Counterclaim dated 6th March 2026, the Claimant reiterates the averments contained in the Memorandum of Claim and denies the allegations in the Counterclaim. He maintains that he did not unlawfully receive salary for the three months following the expiry of his contract. 5. At the hearing, the Claimant testified on his own behalf while the Respondent called one witness. The Claimant adopted his witness statement dated 26th September 2025 as his evidence-in-chief and produced the documents contained in his list of documents of the same date. He testified that although his contract was due to expire on 30th September 2022, he continued serving for a further three months because he had been appointed to a committee responsible for overseeing the transition to the office of the incoming Governor. 6. Upon cross-examination, the Claimant conceded that he had not produced any document from the transition authority confirming his appointment to the committee. He also acknowledged that he had not produced any document authorizing payment of salary beyond the expiry of his contract. 7. On the Respondent's side Mr. Jimmy Usiku Ober, its Payroll Officer/Data Analyst testified. He adopted his witness statement dated 14th May 2026 as his evidence-in-chief and produced the Claimant's gratuity computation for the period between February 2018 and September 2022. He testified that gratuity was calculated based on the applicable basic salary which was subject to annual increments. On that basis, he stated that the Claimant's correct gratuity was Kshs. 1,547,519.23. He further testified that in the course of his duties he discovered that the Claimant had been paid salary for three months after the expiry of his contract and that the overpaid amount was recoverable together with interest. 8. Upon cross-examination, he stated that he was unaware of the existence of a transition authority. He nevertheless acknowledged that elections had taken place but stated that he did not know the exact date when the incoming Governor assumed office. 9. Upon the close of the oral hearing, the Court directed the parties to file written submissions. Claimant's Submissions 1. In support of his claim the Claimant identifies the following issues for determination: Whether the Respondent is in breach of contract; Whether the Claim is merited; Whether the Counterclaim is merited; and Who bears costs of the suit. 1. On the first issue, the Claimant submits that the Respondent breached the employment contract by failing to pay his gratuity upon the expiry of his fixed-term contract in September 2022. He asserts that parties are bound by the terms of their contracts and relies on **National Bank of Kenya Ltd *v* Pipeplastic Samkolit (K) Ltd (2002) 2 EA 503; [2011] eKLR**, where the court held that courts cannot rewrite contracts freely entered into by parties. He further submits that although the Respondent acknowledges his entitlement to gratuity, it has failed to discharge its burden under sections 107 and 108 of the Evidence Act by proving that payment was made. He also relies on section 18(5)(a) of the Employment Act, which requires an employer to pay all wages and allowances due upon termination by effluxion of time. In addition, he cites **Anne Wambui Nderitu *v* Joseph Kiprono Ropkoi *&* another [2005] 1 EA 334** for the proposition that allegations unsupported by evidence cannot be sustained. 2. Regarding the Counterclaim, the Claimant submits that it is merely an attempt to avoid payment of the outstanding gratuity and should therefore be dismissed. He maintains that he lawfully continued serving for three months during the transition to the incoming Governor pursuant to sections 5, 6, 7 and 8 of the Assumption of the Office of Governor Act and was consequently entitled to the salaries paid during that period. He further argues that the Respondent failed to produce documentary evidence, including bank statements or payment records, to substantiate the alleged overpayment, rendering the Counterclaim unmerited. 3. On costs, the Claimant submits that having proved his case on a balance of probabilities, he is entitled to costs. He accordingly urges the Court to allow the claim and dismiss the Counterclaim with costs. Respondent's Submissions 1. On its part the Respondent emphasizes that the Claimant's computation is exaggerated and erroneous because it is based on a basic salary of Kshs. 140,440/-. It reiterates that the Claimant's entry basic salary was Kshs 109,089/- hence the calculation of (31% × Kshs. 140,440.00) × 56 months - Kshs. 2,438,038.40) is misleading. The Respondent maintains that the Certified Gratuity Statement dated 17th February 2026, produced in evidence accurately computes the gratuity payable and has not been challenged by the Claimant. Relying on **Francis Karimi Mugo *v* Nairobi City Water *&* Sewerage Company Limited [2018] KEELRC 810 (KLR)**, the Respondent submits that claims for special damages must be specifically pleaded and strictly proved, and contends that the Claimant failed to prove the gratuity claimed. The Respondent further submits that the Claimant continued drawing salaries for three months after the expiry of his contract and is therefore not entitled to gratuity for any period beyond 30th September 2022. It maintains that all sums due to the Claimant were duly paid and that the burden of proving non-payment lay with the Claimant. In support, it relies on **Anne Wambui Nderitu *v* Joseph Kiprono Ropkoi *&* another [2005] 1 EA 334** which placed the burden of proof of a fact on the party who alleges. 2. On the Counterclaim, the Respondent submits that it is well founded because the Claimant unlawfully received salaries for October, November and December 2022 after the expiry of his contract, resulting in an overpayment of Kshs. 429,132/-. It argues that the Assumption of the Office of Governor Act did not operate to extend the Claimant's fixed-term contract and reiterates that courts cannot rewrite contracts. The Respondent further contends that the Certified Gratuity Statement and its payroll records demonstrate the overpayment and entitle it to reimbursement. In support of this position, it relies on **Lear Shighadi Sinoya *v* Avtech Systems Limited [2017] KEELRC 347 (KLR)**, where the Court held that an employer is entitled to recover salary overpaid to an employee once the overpayment has been established. On costs, the Respondent urges the Court to exercise its discretion in its favour, contending that the suit is an abuse of the court process and should be dismissed with costs. Disposition 1. The Claimant served as Chief of Protocol in the County of Homa Bay. He was in office until a new Governor was sworn in and he received payment the Respondent seeks in its counterclaim. Under the Assumption of the Office of Governor Act the Claimant lawfully continued serving for three months during the transition to the incoming Governor pursuant to sections 5, 6, 7 and 8 of the said Act. The Claimant was consequently entitled to the salaries paid during that period. 2. The Claimant was paid for the services rendered and his gratuity was equally paid as demonstrated by the Respondents witness Mr. Jimmy Usiku Ober, its Payroll Officer/Data Analyst. The Claimant's gratuity computation produced was for the period between February 2018 and September 2022. The gratuity was calculated based on the applicable basic salary which was subject to annual increments and the Claimant's correct gratuity was Kshs. 1,547,519.23. Having established the Claimant was paid his salary and gratuity, his claim fails and is dismissed with no order as to costs. 3. The counterclaim was misplaced as the Claimant served as protocol officer and was therefore entitled to salary for the three months he served prior to the engagement of a new protocol officer after the incoming Governor assumed office. As such, the Counterclaim is dismissed albeit with no order as to costs. In the final analysis the claim and counterclaim are dismissed with no orders as to costs. It is so ordered. **Dated and delivered at Kisumu this 22nd day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**