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ELRCPartially AllowedELRC Cause (Nairobi), filed 30th July 2013· [2015] KEELRC 268 (KLR)

Nebert Bernard Muriuki v Multimedia University of Kenya [2015] KEELRC 268 (KLR)

Employment and Labour Relations Court
22 October 2015
NMNzioki wa Makau
5,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A former university deputy director won only two months' unpaid salary because he couldn't prove pay discrimination or join his original employer to the case.

What this practically means

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Executive summary

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The Claimant, formerly Deputy Director Academic Affairs at the defunct Kenya College of Communications Technology (KCCT), sued its successor, Multimedia University College of Kenya, claiming discrimination in pay, unlawful termination and assorted dues. He alleged that on the 2007 transfer of KCCT from Telkom Kenya to the Communications Commission of Kenya his terms remained inferior to those of the Director and Deputy Directors engaged on contract, that he was demoted to Chief Lecturer of Practice, and that his services were unilaterally terminated by letter dated 18th August 2010 without notice or hearing. He sought 12 months' salary as damages, underpayment of Kshs 14,044,800/-, gratuity at 31%, unrefunded pension contributions and salary up to 15th September 2010. The Respondent denied the claims, asserting that the Claimant applied for and declined the Chief Lecturer position, opted for a retrenchment package, and that different pay scales reflected different employers and terms. The Respondent relied on authority that restructuring is permissible if lawful procedures are followed and that differential treatment does not per se amount to discrimination. The Court held the Claimant failed to prove discrimination, since the differing scales were justified by differing employers, and that the termination emanated from the statutory take-over of the college rather than ordinary dismissal. However, the Respondent retained the Claimant to resolve payment issues and exhibited no proof of paying him for August and September 2010. Judgment was entered for the Claimant for Kshs 295,568/-, a certificate of service was ordered, and each party was directed to bear its own costs. All other heads of claim were refused.

Key legal issues

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01

Discrimination in remuneration (equal pay for equal work)

Holding

The Claimant failed to prove discrimination; the differential treatment was explained by differing employers and terms of engagement

Reasoning

The Court found the Claimant was retained on permanent and pensionable terms by the KCCT/Telkom board while colleagues on contract were engaged by CCK, a more generous employer. The Claimant did not demonstrate a forbidden distinction or denial of equal benefit of the law, nor did he join the former employer to substantiate the claim. The claim for the higher scale accordingly failed.

p. 7
02

Fairness of termination following restructuring/take-over

Holding

The termination was not a normal termination but flowed from the statutory elevation of KCCT to a University College, and the Claimant was retained by the Respondent to resolve payment issues

Reasoning

The Court accepted that the termination letter dated 18th August 2010 was tied to the elevation of KCCT under Legal Notice No. 155. A package had been paid. The Court however noted that the Respondent retained the Claimant for payment-resolution purposes and produced no proof of paying him for August and September 2010, entitling him to that salary.

p. 7
03

Entitlement to salary for August and September 2010

Holding

Awarded at the rate the Claimant was actually receiving, Kshs 295,568/- in total

Reasoning

Since the Respondent could not prove payment of salary for the period the Claimant remained in service after the purported termination date, the Court pegged the salary at basic pay of Kshs 96,184 plus house allowance of Kshs 51,600 for the months of August and September 2010, producing the lump sum awarded.

p. 7

Legal principles established

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  • Where an employer asserts payments were made to an employee, it bears the burden of exhibiting proof of payment; unproven payments cannot be offset
  • An employee retained by a successor entity only to resolve payment issues is entitled to salary for the period of retention at the rate he was receiving

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Kshs 295,568/-
  2. 2.Issuance of a certificate of service to the Claimant
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 27(2), 27(3)
  • Employment ActSection 5 (incl. 5(4)(b) and 5(5)), Section 10(5), Section 35, Section 41
  • Legal Notice No. 155 of 2008 (Kenya Gazette Supplement No. 83, Legislative Supplement No. 56 of 26th November 2008)Section 16(1)
  • Companies Actincorporation of KCCT

Cases cited (5)

  • David Wanjau Muhoro v Ol Pejeta Ranching Ltd
    [2014] eKLR
  • Kenya Airways Corporation v Tobias Oganya Auma & 5 Others
    [2007] eKLR
  • Fredrick Ouma v Spectre International Ltd
    [2013] eKLR
  • Miguna Miguna v Attorney General
    [2012] eKLR
  • John Harun Mwau v Independent Electoral Boundaries Commission & Another
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act and Constitution provisions invoked by parties)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nebert Bernard Muriuki v Multimedia University of Kenya [2015] KEELRC 268 (KLR)", Case Analysis (2015). ELRC Cause (Nairobi), filed 30th July 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/268/eng@2015-10-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.