https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2153

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC CAUSE NO. E104 OF 2024 (Before Hon. Lady Justice Anna Ngibuini Mwaure) SHEDD DENNIES SIMOTWO…………………. ……..CLAIMANT VERSUS COUNTY GOVERNMENT OF NAROK….……1ST RESPONDENT NAROK COUNTY ASSEMBLY SERVICE BOARD.……………................……..2ND RESPONDENT NAROK COUNTY ASSEMBLY…..................…3RD RESPONDENT JUDGMENT Introduction 1. The Claimant instituted this suit via a Statement of Claim dated 18th December 2024 seeking the following orders that: a. A declaration that the refusal to include the Claimant in the 2nd Respondent’s payroll upon lapse of the term of his secondment at the executive arm is unfair, illegal, and amounts to unfair labour practices ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 1 OF 25 and is in breach of the Claimant’s constitutional right to fair labour as envisaged under Article 41 of the Constitution. b. An order directing the 2nd Respondent and its payroll manager to immediately to include the Claimant in its payroll and to pay him all the salary arrears due from the month of August, 2024 to date. c. An order directing the 1st Respondent to pay the salary arrears amounting to Kenya Shillings One Million Nine Hundred and Fifty-One Thousand Two Hundred only (Kshs.1,951,200/=) and other statutory deductions as outlined at paragraph 18 of the statement of claim. d. An award of general damages for breach of the Claimant’s constitutional rights, malice and unfair labour practices. e.Aggravated damages f. Costs of this suit and interest. g.Any other reliefs and/or orders as this Honourable Court may deem fit in the interest of justice. Claimant’s case 2. The Claimant avers that he joined public service in 1995 and was appointed municipal treasurer for ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 2 OF 25 Eldoret Municipal Council on 13th September 2004. He was promoted to town clerk for Kapsabet Municipal Council on 4th May 2009, later serving as assistant town clerk in Nairobi until his transfer to Trans Mara County Council on 19th December 2012. 3. On 25th February 2013, the Claimant avers that he was deployed by the Transition Authority as interim clerk of the 2nd Respondent and subsequently confirmed as substantive clerk on 13th August 2015. 4. The Claimant avers that he was seconded to the county executive of the 1st Respondent on 14th June 2018 for a three-year term, later extended from 8th June 2021 to 7th June 2024. 5. During his secondment, the Claimant avers that the Salaries and Remuneration Commission issued a circular on 14th December 2023 revising clerks’ salaries, entitling him to increments. The 2nd Respondent approved his arrears on 16th August 2024, amounting to Kshs.1,951,200/=, but the payroll manager failed to implement payment. 6. After his secondment lapsed on 7th June 2024, the Claimant avers that he was removed from the executive payroll in August 2024 and not reinstated to the assembly payroll, prompting his claim for ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 3 OF 25 reinstatement, payment of arrears, and damages for malice, illegality, and violation of constitutional rights. 7. The Respondents did not file their respective defences to the case. Claimant’s evidence in court 8. CW1, the Claimant, adopted his witness statement dated 18th December 2024 together with the bundle of documents of even date, marked as exhibits 1 to 14, as his evidence-in-chief. 9. CW1 testified that his grievance arises from his secondment to the 1st Respondent in 2018 for a three-year term, which was subsequently renewed for another three years. He stated that upon completion of six years, he wrote to the 3rd Respondent but received no response. He emphasized that his primary employer was the 3rd Respondent, yet he was removed from the payroll in August 2024. He added that he was paid his salary up to August 2025 pursuant to a court order, but has since remained unpaid. He therefore seeks reinstatement to the 3rd Respondent’s payroll together with compensation for the suffering ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 4 OF 25 occasioned by his removal, as well as costs of the suit. 10. In cross-examination by counsel for the 1st Respondent, CW1 confirmed that he was a Clerk to the 3rd Respondent and regarded the 3rd Respondent as his employer. He stated that he received his salary during the secondment, which initially lasted three years. While serving as an Administrator in the Executive, he maintained that he remained Clerk of the 3rd Respondent and that his day-to-day duties did not materially change. He was enrolled in the County Government payroll and paid accordingly. He reiterated that his secondment ended in June 2024 and that thereafter the 3rd Respondent was responsible for his remuneration. 11.In cross-examination by counsel for the 3rd Respondent, CW1 stated that he was “hanging” at the 3rd Respondent without being assigned duties. He asserted that the 3rd Respondent was obliged to allocate him duties upon lapse of his secondment with the 1st Respondent. He acknowledged that his duties had been taken over by another person. He further stated that the SRC Circular dated 14th December 2023 applied to Clerks of County Assemblies and that, although seconded, he ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 5 OF 25 continued to hold the substantive position of Clerk. He emphasized that one of his prayers was for the 2nd Respondent to reinstate him to its payroll, noting that he did not wish to pursue further secondment since the law only permits two terms. 12.In re-examination, CW1 reiterated that he remained Clerk to the County Assembly and that this was his substantive position to date. He stated that he has not been assigned any duties since the lapse of his secondment. Respondent’s evidence in court 13.RW1, Alex N. Lesaloi, an officer of the 1st Respondent’s Executive, adopted his witness statement dated 19th September 2025 together with the bundle of documents dated 5th September 2025, marked as exhibits 1 to 7, as his evidence-in-chief. 14. In cross-examination by Counsel for the 3rd Respondent, RW1 confirmed that CW1 had been seconded from the 3rd Respondent for a period of six years and was thereafter released to return to his primary employer. He explained that secondment between different arms of the County Assembly was a normal administrative practice. He ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 6 OF 25 acknowledged awareness of arrears relating to CW1 but clarified that, at the material time, CW1 was serving as an Administrator rather than as a Clerk. 15. RW1 referred to a letter dated 16th August 2024 from the 2nd Respondent concerning arrears payable to CW1 with effect from 1st July 2023. He stated that the 2nd Respondent had approved payment of the arrears, but they were never settled. He emphasized that although CW1 was substantively a Clerk of the 3rd Respondent, during secondment he performed the duties of an Administrator. He further noted that there was no letter confirming that CW1’s salary during secondment was to be borne by the County Executive. 16. RW1 added that while CW1’s salary was paid to the end of his secondment, the arrears claimed were not settled because the 2nd Respondent failed to advise accordingly. He explained that the arrears related to the SRC Circular applicable to Clerks of the County Assembly, not to Administrators in the County Executive. He reiterated that once the secondment ended, CW1’s payroll was to revert to the 3rd Respondent, which was the entity responsible for his dues thereafter. ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 7 OF 25 17. Parties filed their respective written submissions. Claimant’s submissions 18.The Claimant submitted that he has been an employee of the 2nd Respondent since 25th February 2013, serving as a Clerk and later seconded to the 1st Respondent under a temporary arrangement. He explains that secondment within the public service is governed by the Public Service Commission Act, Cap 185, and the Public Service Commission Regulations, 2020. Under Section 42(6) of the Act, the duration of secondment varies depending on assessment but must not exceed the prescribed period. Regulation 37(4) of the 2020 Regulations further provides that secondment shall not exceed three years, and may be renewed once for another three years, after which the provisions of Section 42(6) apply. 19. The Claimant relied on Kenya Methodist University v Kaungania & Another [2022] KECA 90 (KLR), where the Court of Appeal defined secondment as a temporary transfer of an employee to another employer, with the original employer retaining residual duties until the secondment ends. The Claimant’s second and final term of secondment lapsed on 7th June 2024, yet ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 8 OF 25 the Respondents failed to reinstate him to the County Assembly payroll, leaving him unpaid and in employment limbo. His situation, he argues, amounts to unfair labour practice as condemned in Njuguna v Sybrin Kenya [2024] KEELRC 287 (KLR), which held that indefinite suspension without pay contravenes Article 41 of the Constitution. The 2nd Respondent’s letter dated 16th August 2024 approving a salary increment created a legitimate expectation that the Claimant would continue as its employee. The doctrine of legitimate expectation, as discussed in Changalwa v Unga Limited [2025] KEELRC 1389 (KLR), requires public authorities to act lawfully, reasonably, and fairly, ensuring that expectations induced by their conduct are honoured. 20.The Claimant contended that the 2nd Respondent cannot disown an officer whose substantive position has neither been abolished nor whose entitlement to that position has ever been revoked. He maintains that he remains an employee of the 2nd Respondent and, upon the lawful lapse of his secondment, was entitled by right to revert to its payroll. The 2nd Respondent’s failure to reinstate ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 9 OF 25 him, he argues, is unlawful, and he seeks an order compelling it to include him in its payroll. 21.The Claimant further submitted that his employment with the 2nd Respondent remains valid, as secondment does not terminate or suspend the original contract. Under Regulation 37(10) of the Public Service Commission Regulations, 2020, he was entitled to revert to his substantive position upon completion of the secondment. The 2nd Respondent, however, failed to reabsorb him or pay his salary, leaving him in an unlawful employment limbo. The Claimant relied on the case of Mary Nyangasi Ratemo & 9 Others v Kenya Police Staff Sacco Limited & Another [2013] KEELRC 791 (KLR); he argues that secondment is intended for employee’s development and should not disadvantage the employee. He emphasizes that he was neither dismissed nor resigned and therefore seeks reinstatement to his substantive or equivalent position, with full rights, privileges, and remuneration, contending that the 2nd Respondent’s failure to reinstate him contravenes the law and fair labour practice. ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 10 OF 25 22. The Claimant also submitted that the 2nd Respondent’s conduct constitutes unfair labour practice and breach of contract. The Claimant relied on Article 41 of the Constitution, which guarantees every worker the right to fair labour practices, fair remuneration, reasonable working conditions, and participation in trade unions. He relied on Kenya Ports Authority v Munyao & 4 others [2021] KECA 133 (KLR), where the Court held that unfair labour practices encompass conduct before, during, and after employment, underscoring that the right to work is a fundamental human right tied to dignity and life. 23. Additionally, in Chimwani v Solfin Solutions Limited [2024] KEELRC 13478 (KLR) affirmed that non-payment of salary breaches both the Employment Act and Article 41, amounting to unfair labour practice. The Claimant asserted that he has not received any salary since August 2024 despite being a permanent public officer, and that the 2nd Respondent has offered no lawful justification for withholding payment or excluding him from the payroll. ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 11 OF 25 24. For the reliefs sought, the Claimant submitted that he is entitled to them and urged this Honourable Court to allow the claim as prayed. 1 st Respondent’s submissions 25. The 1st Respondent submitted that the Claimant’s suit is misconceived and should be dismissed with costs. They emphasize that the Claimant remained an employee of the 3rd Respondent throughout, with the 1st Respondent only serving as a host during the secondment. 26. The 1st Respondent submitted that it bears no employment liability toward the Claimant after the expiry of his secondment. The 1st Respondent clarified that payments made by it during the secondment were purely administrative and did not confer substantive employer status. The 1st Respondent relied on the case of Yaseen v Judicial Service Commission [2017] KEELRC 444 (KLR), where the court cited the case of Rev. John Mugania v Kenya Methodist University & Prof. Mutuma Mugambi [2014] eKLR, where the court defines secondment as a temporary leave from the principal employer to serve another, without transferring pension or employment obligations unless expressly agreed. The legal effect is that the ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 12 OF 25 employee remains under the parent employer’s service while temporarily working under the host’s supervision. 27. The 1st Respondent contends that the claimant’s secondment lawfully ended on 7th June 2024, thereby extinguishing any entitlement to salary or reinstatement from the 1st Respondent. It maintains that the claimant’s legitimate recourse lies with the 2nd Respondent, his substantive employer, to whom he automatically reverted upon the lapse of the secondment period. During his testimony, the claimant expressly acknowledged that the 1st Respondent paid his salary promptly throughout the entire period of secondment and further conceded that his claim for salary arrears does not lie against the 1st Respondent. Consequently, his prayers for reinstatement, salary arrears, terminal dues, and any other employment benefits as against the 1st Respondent are legally untenable and should be dismissed with costs. 28.The 1st Respondent submitted that the Claimant seeks salary arrears amounting to Kshs.1,951,200/=, arising from the SRC Circular dated 14th December 2023, which revised the remuneration of Clerks of County Assemblies for ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 13 OF 25 the 2023/2024 and 2024/2025 financial years. The 1st Respondent denies any liability for these arrears. It is undisputed that, although the claimant’s substantive position was Clerk of the County Assembly, he was seconded to the Executive and served as an Administrator when the SRC Circular was issued. The central question is whether the revised salary scales for Clerks applied to him during secondment and, if so, whether the 1st Respondent is liable to pay. 29. Under section 42 of the Public Service Commission Act, 2017, the host institution bears responsibility for remuneration during secondment, but the Act is silent on salary reviews affecting the substantive office. Similarly, the Public Service Commission Human Resource Manual does not clarify whether seconded officers automatically benefit from such reviews. In the absence of statutory or policy guidance, the matter must be determined by interpreting the parties’ agreement. 30. The 1st Respondent argued that the Claimant’s remuneration during secondment was expressly governed by the letter of 5th June 2018, which provided that “the remuneration during the secondment period will be the same as that ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 14 OF 25 currently enjoyed by the officer in the County Assembly payroll.” The 1st Respondent submitted that this clause deliberately preserved the salary the claimant was earning at the commencement of the secondment and did not entitle him to future increments, adjustments, or SRC reviews applicable to the office of Clerk. Had the parties intended such benefits, they would have expressly included them in the agreement. 31. While secondment does not sever the claimant’s substantive employment relationship with the County Assembly, the 1st Respondent submitted that the rights and obligations of a seconded employee are governed strictly by the terms of the secondment. Accordingly, implying entitlement to future salary reviews would amount to rewriting the contract, contrary to the settled principle that courts must enforce agreements according to their express terms. 32. Consequently, the 1st Respondent submitted the Claimant has not demonstrated any contractual, statutory, or policy foundation to support the application of the SRC Circular dated 14th December 2023 which revised the remuneration of Clerks of County Assemblies to his circumstances ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 15 OF 25 during the period of secondment. His claim for salary arrears against the 1st Respondent is therefore misconceived and should be dismissed with costs. 33. Finally, the 1st Respondent invokes section 27(1) of the Civil Procedure Act to argue that costs should follow the event, urging dismissal of the claim against them with costs. 3 rd Respondent’s submissions 34. The 3rd Respondent submitted that the Claimant has failed to prove any legal or factual basis for his claims against the respondents. It is contended that upon expiry of his secondment from the County Executive, the Claimant had no automatic right to resume the office of Clerk of the Narok County Assembly, as the position had already been substantively filled under the County Assemblies Services Act. 35.The Respondent maintains that decisions on redeployment and payroll placement fall within the statutory mandate of the County Assembly Service Board, and no evidence shows that the Board unlawfully refused to reinstate him. The 3rd Respondent relied on the case of Secretary, County Public Service Board & another v ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 16 OF 25 Abdille [2017] KECA 643 (KLR), where the court emphasize that deployment and placement are administrative functions governed by law, not employee discretion. The claimant’s allegations of constitutional violations under Articles 41 and 47 are said to lack precision, contrary to the principles in Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR) and Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR), which require specificity in constitutional pleadings. 36.The 3rd Respondent further submitted that the Claimant failed to prove entitlement to salary arrears or damages, relying on Capital Fish K Ltd v Kenya Power & Lighting Co. Ltd [2012] KEHC 5275 (KLR), which held that special damages must be specifically pleaded and strictly proved, and Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR), which clarified that constitutional damages are discretionary and not automatic. 37. In conclusion, the 3rd Respondent submits that the claimant has not demonstrated any unlawful act, bad faith, or breach of duty and urges the court to dismiss the claim with costs. ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 17 OF 25 Analysis and determination 38.The court has considered the pleadings together with the rival submissions on record; the issue for determination is whether the Claimant was entitled to be reinstated to his position with the second Respondent. 39.Section 42 of the Public Service Commission Act provides as follows: “The authority to second a public officer shall vest in the Commission and shall be carried out on the request of an authorised officer or a public officer. Unless there is an agreement to the contrary, the public body or the organization to which a public officer is seconded shall bear all the costs, remuneration, allowances and other benefits due to the officer during the period of secondment. Where it is no longer necessary for a public officer on secondment to remain seconded and the secondment period has not lapsed, the public officer shall be entitled to revert to the public office held before the secondment. The Commission shall not approve secondment of a public officer, if— (a) the public officer to be seconded has not served in the public service for at least three consecutive years after the initial appointment; ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 18 OF 25 (b) the public body or organization to which the public officer is to be seconded presents a conflict of interest with the public office held by the public officer or the core functions of the public body in which the public officer is employed; (c) the public officer may be exposed to undesirable experience in view of the core functions of the organization to which the public officer is to be seconded; or (d) the secondment, if permitted, would bring the public service or the public officer into disrepute. An authorised officer or other lawful authority shall not approve a request for secondment unless the Commission has approved the secondment in writing. The period of secondment shall vary from case to case depending on the overall assessment under this Act but shall not in any case exceed the prescribed period: Provided that a public officer who intends to remain on secondment after the expiry of six consecutive years, shall retire from the public service with accrued retirement and other terminal benefits in accordance with the relevant law or agreement.” ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 19 OF 25 40.Regulation 37(4) of the Public Service Commission Regulations 2020 further provides that secondment shall not exceed three years, may be renewed once for another three years, after which the provisions of Section 42(6) apply. 41.Regulation 37(10) of the Public Service Commission Regulations 2020 provides as follows: “Upon completion of the secondment period, a public officer shall— (a) revert to the terms and conditions of service appropriate to their substantive position in the public body; and (b) not be eligible for another secondment within a period of three years from the last secondment.” 42.In the instant case, the Claimant was seconded to the County Government of Narok (1st Respondent) where he served for six years and was supposed to return to his position with the 3rd Respondent. At the expiry of his secondment however, the 3rd Respondent failed to reinstate him to the payroll, notwithstanding his several reminders, which the Respondents have denied through their submissions. ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 20 OF 25 43. As clearly cited hereinbefore Regulation 37(10) of the Public Service Regulation provide that “upon completion of Secondment of an employee the Public officer shall revert to the terms and conditions of service appropriate to their substantive position in the public body.” The Claimant’s tenure with the 1st Respondent expired on 7th June 2024. On 23rd May 2024, the Claimant wrote to the Speaker of Narok County Assembly Service Board and informed them that his Secondment with County Executive had come to an end with effect from 7th June 2024. The court is not seized of any response from the 3rd Respondent to the Claimant’s letter. It is clearly unfair labour practice for an employer to fail to communicate to their employee. As it is the Claimant was not reinstated to his position nor was he terminated. He remained in limbo. This was clearly a contravention of Article 41 of the Constitution. The article provides that every person has the right to fair labour practices. 44. It is imperative for an employer to communicate its decision to an employee. In the case of BENSON MUHIA KAMAU & 2 OTHERS -VS SAFEPARK LTD (2017) KEELRC 451 the court stressed that ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 21 OF 25 notices, instructions and disciplinary decisions must clearly and effectively be communicated to employees. In STANLEY OMWOYO -VS BOARD OF MANAGEMENT OF NAKURU YMCA SECONDARY SCHOOL (2015) KEELRC 1130 KLR the court held that “an employer must make reasonable efforts to notify and communicate disciplinary and termination decisions to an employee.” 45. Clearly, the court has made a case of unfair labour practice by the 2nd Respondent against the Claimant in failing to communicate to him about his status after the lapse of his secondment with the 1st Respondent. 46. As to the issue of the payment of Claimant’s salary arrears, the court will be guided by the letter of Narok County Government dated 14th June 2018. The 1st Respondent wrote the deployment letter to the Claimant and stated as follows: “The remuneration during the secondment period will be the same as currently attached to you in the County Assembly payroll.” 47. The Clamant was therefore entitled to the salary of his position from the mother Organisation. ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 22 OF 25 Furthermore, the Narok County Public Service Board by their letter dated 16th August 2024 confirmed to him that he was entitled to have his salary paid as per the SRC Circular Ref No SRC/TS/24/6 Vol (56) dated 14th December 2023. 48. The court having considered the pleadings, submissions and caselaws as well as applicable law holds the Claimant has made a case in his favour against the Respondent. The court grants the following orders:- a.A declaration is made that the refusal to include the Claimant in the 2nd Respondent’s payroll upon lapse of the term of his secondment at the executive arm is unfair, illegal, and amounts to unfair labour practices and is in breach of the Claimant’s constitutional right to fair labour as envisaged under Article 41 of the Constitution. b.The court orders that the 2nd Respondent and its payroll manager to immediately include the Claimant in its payroll and to pay him all the salary arrears from the month of August, 2024 to date. c. An order be issued directing the 1st Respondent to pay the salary arrears amounting to Kenya Shillings One Million ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 23 OF 25 Nine Hundred and Fifty-One Thousand Two Hundred only (Kshs.1,951,200/=). d.An award of general damages for breach of the Claimant’s constitutional rights, and unfair labour practices amounting to Kshs.300,000/=. e.Aggravated damages amounting to Kshs.100,000/=. 49. The Claimant will have the costs of this suit and interest from the date of delivery of this judgment at 14% per annum at court rates until full payment. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 24th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 24 OF 25 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC CAUSE NO. E104 OF 2024 JUDGMENT PAGE 25 OF 25