Kirinyaga to pay ex-deputy governor Sh5.7m after losing appeal

Former Kirinyaga Deputy Governor Peter Ndambiri/FILE

Title: Kirinyaga to pay ex-deputy governor Sh5.7m after losing appeal

The Court of Appeal in Nyeri has upheld an order requiring the Kirinyaga government to pay a former deputy governor Sh5.7 million for failing to provide him with a residence while he served.

The county government had appealed an earlier decision made by the Employment and Labour Relations Court in which Justice Onesmus Makau had ruled on October 15, 2024, that provision of housing was a statutory obligation.

The court said Peter Ndambiri was entitled to a housing allowance for the entire period of service of 60 months using a monthly rate of Sh90,000 from 2017 to 2022.

Dissatisfied, the devolved unit filed the appeal on November 5, 2024, seeking to have the judgment set aside because the former deputy governor was paid a consolidated monthly salary of Sh621,250 that included his housing allowance.

 “Paying the housing allowance as directed by the judgment would in effect go over and above gazette notices and legal salary payable to the respondent,” the county told the court.

It also wanted the High Court to find that the trial court erred in finding that Ndambiri was entitled to a housing allowance despite directives by the Salaries and Remuneration Commission that the housing benefit was to strictly be a leased abode or a house built by the county.

The county submitted that as per the Gazette Notice No.6518 of 2017 issued by SRC, Ndambiri’s salary was gross, meaning that it was inclusive of house allowance.

It then cited the decision in Kenya Magistrates’ and Judges Association Vs. SRC & Judicial Service Commission (2019) KEELRC 277 (KLR) that declared as unlawful the failure by the commission to itemise allowances paid to state officers, after which SRC published a Gazette Notice No.8794 of 2022 that itemised the Sh621,250 salary for deputy governors to include a house allowance.

The county government insisted that though SRC had advised counties to provide official or leased house for the deputy governors, no money was supposed to be paid to them directly.

It was further submitted that the appellant set aside land and commenced construction of the deputy governor’s residence but that there was no legal underpinning for the same.

“The respondent opted to live in his own residence and did not provide any evidence before the court that he lived in a rented house,” it said.

But Ndambiri said the Employment Act requires an employer to provide at his own expense reasonable housing accommodation for his employee either at or near the place of work, or pay a sufficient sum as rent in addition to wages or salary to enable the employee obtain reasonable accommodation.

He reiterated that the county government never provided him with either an official residence or a leased one contrary to the circulars by the SRC which entitled him a housing benefit.

The judge ruled that it was indisputable that deputy governors were entitled to a housing allowance like any other state officers, citing a circular issued by the SRC on August 25, 2017, advising counties on the housing benefit for designated state officers in the county including deputy governors.

The circular advised counties to provide official residence or a house leased by the county government for a rent not exceeding Sh185,000 in Nairobi, Mombasa and Kisumu, and Sh90,000 in other counties.

It also advised counties to prioritise funds for construction of the official residences in the 2018-2019 budget cycle and that the deadline for leasing residences was June 30, 2019 which was later extended to June 30, 2022.

"I find that circulars by SRC on the housing benefits for the state officers in counties and deputy governors were not mere suggestions or recommendations but were legally binding," Justice Makau said.

“It follows that the appellant’s allegation that the respondent’s salary of Sh621,250 included housing was contrary to the said binding SRC’s advice and therefore null and void,” he added.

The court said the county had the option of allocating an official residence or a leased house for monthly rent but failed to do so for 60 months which entitled Ndambiri to compensation equaling the monthly rent of Sh90,000.

While dismissing the case, the judge noted that the Sh5.7 million award given by the trial court to Ndambiri was grounded on straight forward evidence adduced by the parties and upheld it.

INSTANT ANALYSIS

The county government had appealed an earlier decision made by Justice Onesmus Makau von October 15, 2024, that provision of housing was a statutory obligation. Dissatisfied, the devolved unit filed an appeal on November 5, 2024, seeking to have the judgment set aside because the former deputy governor was paid a consolidated monthly salary of Sh621,250 that included his housing allowance.