Former Kenya National Union of Teachers (Knut) chairman Mudzo Nzili suffered a setback after a court dismissed his claim for payment of Sh11.1 million in salary arrears for his service as a Liaison and Labour Advisor to the Secretary-General after his chairmanship.
The Employment and Labour Relations Court at Malindi dismissed Mr Nzili’s claims based on his salary arrears as time-barred under the Employment Act.
Justice Monica Mbaru noted that Mr Nzili filed his claim on December 31 last year, way after the appointment as a Liaison and Labour Advisor to the Secretary General (SG) ended in June 2022, a period of over 12 months since the ‘continuing injury’ lapsed.
When a benefit to an employee accrues every month, it constitutes a continuing injury under Section 90 of the Employment Act thus such claims ought to be made within 12 months from the date of cessation.
“As a continuing injury, the salary dues should have been addressed on or before May 31, 2023. The claim here is dismissed,” ruled Justice Mbaru.
Mr Nzili told the court that he was appointed Liaison and Labour Advisor to the SG effective December 1, 2020, to June 2022 and that the employment agreement was partly in writing and conduct.
former Knut chairman Mudzo Nzili.
Photo credit: File| Nation Media Group
He told the court that his salary was to be based on the scale of his last pay point at Knut and by November 2020, his salary was 887,230, entitling him to a driver and other allowances.
The claimant told the court that for the contract period, he was only paid a Sh300,000 monthly salary and it was agreed that the balance would be settled.
Mr Nzili told the court that his claim comprised salary arrears from December 2020 to June 2022 at Sh587,239 for the 19 months of service without full pay. The court had noted that a letter dated December 14, 2020, from the SG Wilson Sossion appointed Mr Nzili as the Liaison and Labour Advisor and that the appointment was lawful and valid under the Labour Relations Act.
Justice Mbaru, in his September 25 decision, also noted that the alleged union policy that purportedly restricted such matters was not produced.
“In any event, where the former SG is alleged to have made a political appointment of the claimant, upon assuming office in July 2021, the new officials continued the relationship,” noted Justice Mbaru.
She further noted that payment from the union funds was not halted and that the arrangement, even if not valid or lawful, continued until June 2022.
“Where the former SG illegally and without proper authority committed to the responsibility of appointing the claimant, nothing was done by the new incoming officials to rectify the situation,” said Justice Mbaru.
The court also noted that Mr Nzili was to be remunerated as per the salary scale of his last pay at Knut head office (as the national chairman) and was also entitled to a driver and other allowances.
Justice Mbaru said that, as correctly stated by Knut witness (current SG Mr Collins Oyuu), making the payments to Mr Nzili was akin to having two chairpersons for the union.
“This does not promote accountability or proper use of the union funds; nevertheless, the respondent maintained the appointment of the claimant and took no action to revoke or invite him to amend his appointment,” ruled Justice Mbaru.
The judge also noted that non-payment of accrued salary occurred on a monthly basis, thus constituting a ‘continuing injury’ whose claims ought to be made within 12 months.
Knut denied Mr Nzili’s claim and sought to have the case dismissed, arguing that the purported appointment was not sanctioned by the union’s governing council or any authorized body and was a unilateral political arrangement between the then SG and the claimant, hence lacking legal validity.
It further argued that the position of Liaison and Labour Advisor does not exist in the union’s organizational structure or salary framework and that there was no legally binding oral or written contract to appoint Mr Nzili.
Mr Oyuu, who testified on behalf of Knut, said he was not aware of the appointment and that when he took over as SG he received a letter of demand to pay Mr Nzili’s salary arrears. Upon cross-examination, he admitted that the payment of Sh300,000 per month was from the union funds and that Mr Sossion did not pay Mr Nzili.
