REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
ELRC PETITION NO. E200 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
YEGON EMMANUEL KIPROTICH................................ PETITIONER
VERSUS
INDEPENDENT MEDICO-LEGAL UNIT (IMLU)........... RESPONDENT
JUDGMENT
The Petitioner commenced the instant suit on 6th October 2026 alleging that he had acted as Technical Lead Investigation and Protection from March 2024 to December 2024 and as Technical Lead, Litigation and Legal Advice from September 2024 and December 2024, while still serving as Technical Lead Case Work Management of the Respondent and served diligently but was not paid an acting allowance, which, according to the Petitioner was discriminatory because another employee who acted as Reparations Manager was paid acting allowance while serving as Technical Lead Litigation and Legal Advice from February to June 2024.
The Petitioner prayed for;
(i) 80% of 10 months salary Kshs.1,133,480.00
(ii) 80% of 5 months salary Kshs.613,000.00
(iii) A declaration that the Respondent’s failure to pay acting allowance in the role of Technical Lead Investigation and Protection and Technical Lead Litigation and Legal Advice violated the right to fair labour practices under Article 41 of the Constitution of Kenya.
(iv) A declaration that the Respondent’s failure to appoint successors to the two roles and compelling the Petitioner to inordinately act in the two roles constituted unfair Labour practice.
(v) A declaration that the Respondent’s decision to direct the Petitioner to act as Technical Lead Investigation and Protection despite lacking skills amounted to a unilateral change of the employment contract contrary to section 10(5) of the Employment Act and amounted to unfair Labour practice.
(vi) A declaration that the Respondent’s failure to pay acting allowance for the work done in the two roles amounted to discrimination.
(vii) General damages for constitutional violations.
(viii) Costs of the instant petition.
The Petitioner filed Supplementary Affidavits sworn by Isabella Nabwire Obara on 15th December 2025 and Jethro Nyagilo sworn on even date. While the former deponed on the fact that she gave the petitioner a copy of her pay slip for his use in this case as a comparator, the latter deposed that he helped the petitioner in serving as the Technical Lead Case Work Management in fulfilling the responsibilities of Technical Lead Investigation and Protection which was vacant and the petitioner acted in the role.
By a Supplementary Affidavit sworn on 15th December 2025, the Petitioner deponed that the Respondent’s Human Resource Manual did not apply to him as he neither received a copy nor sign one and it was not part of the contract of employment.
Strangely, he relied on cCause 7.12 on responsibility allowance. That Jethro Nyagilo was assisting while the petitioner did the work as Technical Lead Investigation and Protection.
The affiant responded to the Respondent’s allegations on taking over/stealing a survivor PJ clearance, conflict of interest, dip in quality of work, theft of personal data and jurisdiction of the court.
Respondent’s case
Mr. Andrey Mkawale, the Respondent’s Human Resource Officer deponed that the respondent engaged the Petitioner vide letter dated 29th May 2023 as Technical Lead Casework Management.
The affiant further deponed that all staff of the Respondent were guided by the Human Resource Polices and Procedures Manual approved in October 2022 and which provided for acting appointments.
He denied that the petitioner had been instructed to act in other roles as he had no evidence in support of the claim and in the case of Technical Lead Investigation and Protection, the Respondent engaged a consultant to assist in the work who was paid an honorarium and after August 2024 the position was made defunct owing to duplication of roles and no acting took place.
That the petitioner submitted a proposal under the name Reform proposal in Technical Lead Casework Management to Ms Isabella Obaora, then Technical Lead Litigation and Legal Advice for transmission to the Executive Director in strengthening of litigation and was allowed to proceed accordingly but in litigation matters and the petitioner attended court in cases such as Baby Samantha Pendo and the Kianjokoma Case.
The affiant deponed that the Petitioner made a proposal to move to the office Technical Lead Litigation and Legal Advice and had already registered a law firm Yegon-K Advocates and had removed client data from the office to file a court case.
That under the Respondent’s Human Resource Manual acting allowance was only payable to those acting in a higher post.
The affiant denied that it compelled the Petitioner to act or subjected him to unfair labour practices and he resigned to pursue personal interests and was fettered and gifted with a voucher worth Kshs.10,000.00 and handed over and all terminal dues were paid.
According to the affiant opening of a law firm in October 2024 was in breach of his terms of employment as he was in fulltime employment.
The affiant denied that the petitioner resigned for being compelled to serve or being subjected to unfair labour practices and had executed a Conflict-of-Interest Disclosure Form on 2nd January 2024 and breaches of the contract of employment were only discovered after he resigned.
That the petitioner harvested data and materials in relation to victim, JP and filed a case against the Government through the office of Attorney General Narok HCC Constittional Petition of 2025 JP v Attorney General without consent of the victim.
That after resignation, the Petitioner filed Nakuru HCCCR Petition No. E045 of 2025 Alvy Aoko Okello & another v Kenya Wildlife Service in relation to a victim of assault by KWS officers and who has not been seen since then. The Petitioner obtained data from the Respondent in violation of the Data Protection Act.
That the Petitioner had unlawfully acquired a payslip of another former employee and used it in court.
The affiant, finally deponed that payment of acting allowance was conducted in accord with the Respondent’s Human Resource Manual and formal approval. He admitted the jurisdiction of the court but denied that the instant petition raised any Constitution issue. The affiant denied that the Respondent discriminated the petitioner.
Petitioner’s submissions
On jurisdiction of the court, reliance was placed on the decisions in United States International University (USIU) v Attorney General National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others KECA 80 (KLR), Kifano v Loivin Ltd & 4 others (2024) KECRC 13536 (KLR), Judicial Service Commission v Gladys Boss Shollei & another (2014) eKLR and Daniel Mugendi v Kenyatta University & 3 others, to urge that the court had jurisdiction to hear and determine disputes grounded on rights and fundamental freedoms in employment disputes and the court had jurisdiction in the instant case and the Petition met the threshold in Anarita Karimi Njeru v Republic (1976 – 1980) KLR 1272 and the Mumo Matemu Case (2013) eKLR, and the Respondents was liable for constitutional violations citing Rose Wangui Mambo v Limuru Country Clubs & 17 others (2014) eKLR among others.
As to whether the Petitioner acted as Technical Lead Investigation and Protection as alleged, counsel contended that he was directed to do so by the Head of Programs under the directions of the Executive Director, and was thus entitled to acting allowance, citing the testimony of Jethro Magilo, email correspondence, email to Head of Programs on 6th December 2024 on allowance. None of the parties availed a copy of the said email for the court’s perusal.
Counsel submitted that that the roles he was acting were additional and Jethro Ngagilo was employed to assist him and Investigational Protection was not declared defunct.
Reliance was placed on Misheck v Kenya Airways Ltd (2024) KEELRC 1291 (KLR) on the absence of an appointment letter having acquiesced in the claimant’s conduct.
Further, counsel submitted on the evidence the Petitioner was relying on to urge that he acted as Technical Lead Investigation and Protection.
As regards the Respondent’s Human Resource Polices and Procedures Manual (HRPPM), counsel submitted that it was not applicable to the Petitioner’s case as it was not part of his employment contract.
citing Abraham Gumba v Kenya Medical Supplies Authority (2014) eKLR and Mbarak Abduqudir Abdalla v County Government of Lamu & another.
Strangely, counsel submitted that even if the Manual was inapplicable it provided for responsibility allowance including the rate, to urge that the Petitioner qualified for responsibility allowance.
According to counsel the Respondent’s failure to pay acting allowance violated the Petitioner’s his constitutional right to fair labour practices and the prolonged acting amounted to unfair labour practice as held in Edah Cherono v University of Nairobi, Enterprises & Services Ltd (2020) eKLR and Silas Kaumbuthu Mbutura v Meru Central Diary Co-operative Union Ltd (2015) eKLR.
That it also amounted to discrimination, citing Gichuru v Package Insurance Brokers Ltd (2021) KESC 12 (KLR).
On conflict-of-Interest, counsel submitted that the Petitioner did not practice or take up any matter while in the Respondent’s employ and filed the 1st matter under his law firm an 1st July 2025. On data theft, counsel submitted that the court had no jurisdiction over the matter. citing Arunda v Office of Data Protection Commissioner & another (2025) KEHC 12262 (KLR) and Kirimi & another v Mobi Chonga Ltd (2023) KEHC 25772 (KLR).
On reliefs, counsel urged that the Petitioner was entitled to Kshs.3,000,000 as damages.
Respondent’s submissions
On whether the Petitioner acted in two positions, counsel submitted that it was not humanly possible to do so and the Respondent’s Manual was clear on acting appointments, which were formal.
Counsel Submitted that the Petitioner was bound by the Respondent’s Manual, citing Irungu v Kenya Pipeline Co. Ltd (2023) KEELRC 459 (KLR) on the Human Resource Manual and the purported acting had to be in accord with the Human Resource Manual. Counsel submitted that as regards acting as the Technical Lead Investigation and Protection, March to December 2024, the Petitioner provided no evidence or work to demonstrate having served in the role and did have not the requisite qualifications and in any case one Jethro Nyagilo was engaged as a consultant as pro bono basis until August 2024 and the position was made defunct.
As regards acting as Technical Lead Litigations & Legal Advise, September to December 2024, counsel urged that the Petitioner had 75 office hours from Monday to Friday as per the Manual and could not reasonably serve in three positions and the petitioner had indicated he wanted to change his role to Technical Lead Litigation and Legal Advice a lateral role and wrote to Ms Vivian Mwende about it using a document he had authored as the recommendation and intended to use the position for selfish ends.
As to whether the Respondent violated the Petitioner’s right to fair labour practices, counsel urged the court to rely on the Respondents Replying Affidavit on the instances in which acting allowance was payable, including appointment by the Executive Director and in writing.
That the positions the Petitioner allegedly acted in were lateral as per the organogram provided and the payslip of Isabella Obara could not avail the Petitioner as she had acted as Reparations Manager, higher than her substantive position.
Reliance was placed on Gichuru v Package Insurance Brokers Ltd (Supra) where the court cited Peter K. Waweru v Republic (2006) eKLR on the concept of discrimination, to submit that the Petitioner was not discriminated and was remunerated accordingly.
Further reliance was placed on Mohamed & another v Attorney General & 2 others (2024) KEHC (12089 (KLR) on the burden of proof as well as the decision in Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KESC 66 (KLR), to submit that the Petitioner failed to demonstrate any claim of discrimination or unlawful labour practices by the Respondent as the allegation of having acted in two position was unsubstantiated.
As to whether the Petitioner engaged in professional misconduct using the Respondent’s data, Counsel submitted that he did as he registered a law firm when he was an employee of the Respondent and thus created a direct conflict of interest which he did not disclose. Counsel cited the decision in Re Estate of Wahome Mwenje Ngonoro (Deceased) 2016) KEHC 2576 (KLR) on the need for a party who approaches the court to be candid. Counsel urged that the cases filed in Nakuru and Narok relied on materials obtained from the respondent by the petitioner and thus violated the Respondent’s privacy. That in the Narok matter, the Respondent had investigated the matter and prepared client assessment Reports on both Petitioner’s and the Petitioner relied on the Respondent’s data and had no evidence of the Respondent’s consent to harvest the data and thus was guilty of gross misconduct and the Respondent acted in accord with the law.
Analysis and determination
It is not in dispute that the Petitioner was an employee of the Respondent effective 13th June 2023 for a period of 2 years till 12th June 2025 and resigned from employment effective 30th May 2025, about 12 days prior to effluxion of the term of employment, allegedly because of unfair labour practices and professional reasons. Strangely, the petitioner did not avail a copy of the resignation letter as evidence.
The pith and substance of the petitioner’s case is that he acted as the Technical Lead, Investigation and Protection and Technical Lead Litigation and Legal Advice but was not paid acting allowance. The Respondent maintained that no acting took place as per the Respondent’s Human Resource Manual, October 2022.
The Petitioner also contests the applicability of the Respondent’s Human Resource Manual to him, but strangely relied on it to urge that he was entitled to Responsibility allowance, thus approbating and reprobating.
The issues for determination are:
(i) Whether the Petitioner acted in the two positions as claimed.
(ii) Whether the Respondent violated the Petitioner’s constitutional rights.
(iii) Whether the Respondent’s Manual was applicable to the Petitioner.
(iv) Whether the Petitioner is entitled to the reliefs sought.
As adverted to elsewhere in this judgment the petitioner’s case is that while serving as the Respondent’s Technical Lead Casework Management he also acted as Technical Lead Investigation and Protection (March 2024 to December 2024) and Technical Lead Litigation and Legal Advice (September 2024) to December 2025 an allegation the Respondent denied.
Intriguingly, the Petitioner availed no evidence of the appointment to act nor a specific date. Neither the Petition nor the Supporting Affidavit made no reference to the person who instructed, requested or compelled him to act in either of the roles. However, the Supplementary Affidavit made reference to the Head of Programs under the direction of the Executive Directors. Puzzlingly, no individual was identified as having caused the instruction request or coercion as alleged or how it was effected. It is unclear as to now the Executive Director directed the Head of Programs.
In the absence of any credible evidence of the appointment to act and in the face of the Respondents denial, it was incumbent upon the petitioner to evidentiary demonstrate that he was appointed to act in the two roles.
Although the petitioner alleged to have sent an email to the Head of Programs on 6th December, 2024, he did not avail a copy of the email or request the Respondent to avail it as evidence.
While the evidence of Jethro Nyagilo revealed that he and the petitioner did some work together, it did not demonstrate that the petitioner was acting in the position. Evidence of reports prepared documentation processed or prepared was not availed.
Relatedly, the petitioner lamented that he was not skilled in Investigation and Protection but insisted that he acted for about 9 or 10 months. It is unclear to the court how he was discharging the responsibilities of the position without the requisite skills.
Finally, if the Head of Programs instructed, requested or coerced the Petitioner to act as Technical Lead Investigation and Protection, what were the terms of appointment and duration. What of the petitioner’s remit?
The foregoing is fortified by the fact that an acting appointment is a substantive appointment, albeit temporary. The person acting steps into the shoes of the substantive holder of the position in all respects and cannot allege that he or she has no skill or expertise on account that the appointing authority considers all relevant facts and a person cannot purport to act in a position he or she is not qualified to hold.
Having acted from March 2024 to December 2024, the petitioner ought to have availed sufficient credible and reliable material to demonstrate that he indeed acted for the entire duration.
An acting appointment is not part-time, it is full-time and duties and responsibilities of the position must be discharged as if there was a substantive holder. The appointee is responsible to the appointing authority.
Without an appointment letter, the petitioner could only prove his acting way of email communication covering the entire period and/or evidence of the tasks accomplished, reports compiled, meetings attended, visits made or presentations made.
The evidence availed by the petitioner cannot account for one (1) month of acting as Technical Lead Investigation and Protection, let alone Technical Lead Litigation and Legal Advice.
It is also important to note that since the position the petitioner purportedly acted in was at the same level as his substantive position, he technically could not be acting but performing the duties of the position on terms other than acting.
In the context of employment, acting presupposes a higher position than the one the person acting substantively holds as was the case with Isabella Nabwire Obara who was earning an allowance of Kshs.33,702.00 for acting as Reparations Manager from February 2024 to June 2024, a fact the petitioner admitted and counsel submitted on as evidence of discrimination.
In relation to the position of Technical Lead, Litigation and Legal Advice September – December 2024, the Petitioner averred that he started performing the duties of the position when the substantive holder of the office resigned under verbal directions of the unnamed Head of Program and when and on what terms.
Analogous to the position of Technical Lead Investigation and Protection, the Petitioner availed neither evidence of appointment to act as Technical Lead Litigation & Legal Advice tasks or responsibilities discharged from September to December, 2024.
Email communication, reports, minutes of meetings list of cases, or files or clients attended to and when would have effortlessly demonstrated that the Petitioner rendered services as the Technical Lead, Litigation and Legal Advice.
It is also notable that the Petitioner campaigned to transition from the position of Technical Lead, Casework Management to Technical Lead-Litigation and Legal Advice but was not appointed.
Although the Petitioner provided no reason for the intended lateral movement, it is noteworthy that the petitioner had established a law firm a year earlier, which according to him was running.
From the evidence on record, it is discernible that the petitioner performed some duties in the two roles but at most, intermittently, and as found, he was not acting in those positions and having failed to adduce credible and sufficient evidence to prove that he performed the duties continuously for the duration alleged, the amounts claimed lack justification and are unmerited.
In arriving at this conclusion, the court finds it unfathomable how the petitioner performed the roles of three positions in an organization from September 2024 to December 2024 and did not allege that he was overwhelmed, or worked overtime and was paid or not paid or what innovative methods he devised to discharge the roles efficaciously.
The court finds that the petitioner is only entitled to some nominal responsibility allowance for 2 months to be computed in accord with the Respondent’s Human Resource Polices and Procedures Manual October, 2022.
As to whether the Respondent violated the petitioner’s constitutional rights, counsels adopted contrasting positions with the respondent urging that the petitioner failed to demonstrate that any of his constitutional rights were violated.
According to the petitioner, the petition raised genuine constitutional issues and met the threshold in Anarita Karimi Njeru v Republic (Supra) and the petitioner was discriminated by the Respondent on payment of acting allowance.
Having found that the Petitioner failed to demonstrate that he acted in any position and/or was entitled to acting allowance, the claim of discrimination lacked a foundation. While it is true that Isabella Nabwire Obara acted as Reparations Manager and was paid an allowance, the petitioner did not act in any position but as found, he may have performed some duties intermittently.
Even assuming that the petitioner discharged the alleged responsibilities continuously, he did not qualify for acting allowance but a responsibility allowance. The petitioner and Isabella Nabwire Obara were not comparators or similarly circumstanced. The claim for discrimination is unsustainable was unsubstantiated.
Going back to violation of other constitutional rights, the petitioner alleged that the long period of acting in the two positions violated his right to fair labour practices under Article 41 of the Constitution of Kenya, but having already found that no acting took place only some responsibilities were discharged albeit intermittently and the clam that the prolonged acting violated his constitutional right could not arise.
In the end, the petitioner failed to place sufficient material before the court for a finding that his constitutional rights were violated by the Respondent.
On whether the instant petition raises a constitutional issue and contrary to the petitioner submissions, the suit is a plain vanilla employment dispute and raises no constitutional issue and in the court’s view does not meet the threshold in Anarita Karimi Njeru v Republic (Supra) or Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others (2013) eKLR. This suit ought to have been filed as a claim.
Nevertheless, the court has jurisdiction to hear all disputes relating to Employment and Labour Relations whether filed as Judicial Review applications Petition or Claim by dint of Article 162 (2) (a) of the Constitution of Kenya and section 12(1) of the Employment and Labour Relations Court Act.
As to whether the Petitioner was bound by the Respondent’s Human Resource Policies and Procedures Manual, 2022, parties adopted contrasting positions with the Petitioner maintaining that it was not part of his contract of employment and no copy was availed to him when he was employed by the Respondent.
It is not in dispute that the Petitioner was employed by the Respondent after it had operationalized its Human Resource Policies and Procedures Manual but as correctly submitted by the Petitioner, the letter of offer dated 29th May 2023 had no clause or term incorporating the Respondent’s manual into the contract of employment and the Respondent tendered no evidence to prove that it availed a copy of the manual to the Petitioner.
However, and as adverted to above, the Petitioner was employed after the Respondent operationalized its Human Resource Polices and Procedures Manual. It behooved the petitioner to inquire about its existence and obtain a copy particularly after he was requested, directed or compelled to perform duties in the other two roles. He ought to have enquired from the Head of programs the basis of the request, direction or compulsion as alleged and how much he would be paid for the services rendered.
The ten (10) months he had served before the alleged request to act was made was sufficient for the petitioner to appreciate that the Respondent had a Human Resource Polices and Procedures Manual, which governed leave, performance, redundancy, discipline, allowances, promotion acting appointments and separation among others. From the evidence on record, it is unclear whether the petitioner either applied or proceeded on leave for the duration he served, almost 2 years.
In determining this issue, the court is guided by the sentiments of the Court of Appeal in Otieno v National Cereals and Produce Board (2021) KECA 23 (KLR) as follows:
“It is clear to us, however, that the said manual was in existence for the time the appellant worked for the Respondent. While appreciating that the employer had the statutory responsibility to avail the manual to the appellant, it was also prudent and in his interest for the appellant to enquire about and obtain the manual from the Respondent. This was even more important during the disciplinary process and after receiving the letter of suspension…”
In the courts view, the duration the petitioner had worked for the Respondent was sufficient for him to ascertain or learn that the Respondent had a Manual which regulated its internal operations and was bound by it.
More significantly and as mentioned elsewhere in this judgment, the petitioner deponed that although the Respondent’s Human Resource Manual did not apply to him it provided for payment of Responsibility Allowance where an employee took up extra responsibilities where the job holder was away on leave, sick or had left employment before the vacancy is filled. The petitioner deponed that at the very least he was entitled to payment of Responsibility allowance.
Finally, having found that the petitioner did not act in any position as alleged and only performed extra duties albeit intermittently, was not discriminated and the Respondent did not violate his constitutional rights, none of the declarations sought is merited as is the prayer for damages and acting allowance.
In the upshot, the petitioner’s case is partially successful to the extent that the petitioner is awarded Responsibility allowance for 2 months to be computed by the Respondent in accordance with it’s Human Resource Policies and Procedures Manual, 2022.
Parties shall bear own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 16th JUNE, 2026.
DR. JACOB GAKERI
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 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.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI PET E200 OF 20252 OF 19 |