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ELRCDismissedNot stated in the judgment (statement of claim dated 01.12.2016, filed 05.12.2016)· [2018] KEELRC 324 (KLR)

John Otieno Nyamwa & 66 others v University of Nairobi [2018] KEELRC 324 (KLR)

Employment and Labour Relations Court
14 December 2018
BOByram Ongaya
1,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Employees who sued for underpayment lost because pay slips alone couldn't prove how much they were owed without appointment letters and receipts.

What this practically means

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Executive summary

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The claimants, employees of the respondent, sued seeking a declaration that the respondent's failure to implement statutory minimum wage orders was unfair and unlawful, orders to adjust salaries to conform to a CBA, underpayment arrears from May 2013 to December 2015, risk allowances under a Government Circular of 21.01.2012, interest on Kshs. 10,824,131.00, and costs. They relied on Article 41 of the Constitution, the Wages General Orders 2013 and 2015, and alleged selective failure to refund uniform costs and failure to pay risk allowances to support staff in medical facilities. The respondent, through KTK Advocates, denied the claims and sought striking out of the suit as frivolous and vexatious. The first claimant testified; the respondent called no witness. The court framed a single issue: whether the claimants were entitled to the remedies prayed for. It held that the claimants failed to prove their categorisation under the wage orders, produced no appointment letters, receipts for uniforms, or contractual basis for risk allowances, and gave no evidence on grades to support the stagnation claim. Applying the principle that special damages must be specifically claimed and strictly proved, the court followed Milicent Atieno Ochuonyo v Katola Richard as cited for the respondent. It further held that the respondent's failure to call a witness did not discharge the claimants' burden of proof. Judgment was entered for the respondent striking out the statement of claim, with each party bearing its own costs.

Key legal issues

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01

Whether underpayment based on minimum wage orders and the CBA was established

Holding

Not established; claim failed

Reasoning

The claimants did not produce letters of appointment or evidence of designation and qualifications to show their categorisation under the wage orders. Pay slips only proved employment, not underpayment. Special damages pleaded had to be strictly proved, and no evidence established the underpayment or CBA entitlement.

p. 2
02

Effect of the respondent not calling a witness

Holding

The claimant's burden remained undischarged

Reasoning

The court held that the respondent's failure to provide a witness or evidence disputing the claims did not amount to the claimants establishing their claims. The burden of proving claims and special damages remained on the claimants, which they failed to discharge.

p. 2
03

Proof of special damages

Holding

Special damages must be specifically claimed and proved with evidence

Reasoning

Following the opinion cited for the respondent in Milicent Atieno Ochuonyo v Katola Richard, the court applied the principle that special damages must be specifically claimed and proved. The claimants pleaded special damages but provided no necessary or acceptable evidence to establish them.

p. 2

Legal principles established

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  • Special damages must be specifically claimed and strictly proved; failure by a respondent to call evidence does not discharge the claimant's burden of proof

Court orders

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  1. 1.Judgment entered for the respondent against the claimants for striking out the claimants' statement of claim dated 01.12.2016 and filed on 05.12.2016
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya 2010Article 41
  • Wages General Orders 2013 and 2015 (legal notices on basic minimum wages)column 1(g)

Cases cited (1)

  • Milicent Atieno Ochuonyo –Versus- Katola Richard
    [2015]eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Article 41 of the Constitution of Kenya 2010 invoked in the pleadings)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Otieno Nyamwa & 66 others v University of Nairobi [2018] KEELRC 324 (KLR)", Case Analysis (2018). Not stated in the judgment (statement of claim dated 01.12.2016, filed 05.12.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/324/eng@2018-12-14

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