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ELRCDismissedNot stated in the judgment as provided· [2018] KEELRC 1078 (KLR)

Hellen Atieno v Maseno University [2018] KEELRC 1078 (KLR)

Employment and Labour Relations Court
20 September 2018
MOMaureen OnyangoMNMathews Nderi Nduma
1,353 words in judgment
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The bottom line

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The Employment and Labour Relations Court dismissed Prof. Atieno's claim because she couldn't prove she returned university-owned instruments, so Maseno University was right to withhold her dues.

What this practically means

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Executive summary

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The claimant, Prof. Hellen Atieno, was employed by Maseno University from 1991 in the Department of Music and Theatre Studies and voluntarily resigned on 30th November 2012, with salary arrears of Kshs.583,000 outstanding. The respondent paid the arrears but retained Kshs.283,000, alleging the claimant failed to return university property of equal value. The claimant asserted the equipment was her own, producing cash sale receipts, and challenged the withholding of the deduction, arguing no voucher proved she was sent to Nairobi to purchase the instruments, that the values were inflated, and that deductions should have been made before her resignation. The respondent maintained the dispute concerned SELAM project instruments donated in 2007, of which the claimant was in charge, and relied on a 2009 internal memo in which she undertook to compile a report and hand over the instruments. The court framed a single issue: whether the respondent was justified in withholding Kshs.283,000 from the claimant's terminal dues. The court held that the claimant never proved she prepared the promised handing-over report or surrendered the instruments; her 2005 receipts related to different items from the donated SELAM instruments. The claim was dismissed with costs. The judgment was signed by Maureen Onyango, Judge, at Nairobi on 6th August 2018 and delivered by Mathews Nderi Nduma, Judge, at Kisumu on 20th September 2018.

Key legal issues

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01

Whether the respondent was justified in withholding Kshs.283,000 from the claimant's terminal dues on account of unreturned SELAM musical instruments

Holding

Yes. The claimant, as project coordinator, undertook in writing to hand over the SELAM instruments but never produced a handing-over report or proof of handover; the receipts she produced dated 24th February 2005 related to different items, and the issue had been outstanding since 2009, long before her resignation.

Reasoning

The court traced the SELAM donation of 2007 and the claimant's 24th November 2009 memo in which she promised to compile a report and hand over project equipment per the MoU. She never proved she prepared or delivered that report. Her 2005 cash sale receipts did not correspond to the donated SELAM items listed and valued by the Acting Chairperson of the Department. Since she was in charge of the instruments and failed to prove handover, the retention of Kshs.283,000 was justified and the claim failed.

p. 2

Legal principles established

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  • An employee who has undertaken to hand over employer/donor project equipment and fails to prove handover cannot complain of recovery of the value of that equipment from terminal benefits
  • The burden lies on the party asserting entitlement to prove it; receipts for different items do not discharge that burden where the disputed items are distinct

Court orders

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  1. 1.The claim is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a dispute on terminal benefits upon termination of employment (statutory basis not expressly cited in the judgment)

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, "Hellen Atieno v Maseno University [2018] KEELRC 1078 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1078/eng@2018-09-20

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