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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 445 (KLR)

Valentine Ataka v Karatina University [2019] KEELRC 445 (KLR)

Employment and Labour Relations Court
31 October 2019
NMNzioki wa Makau
2,552 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a part-time university lecturer who signs a contract accepts its terms, and awarded him only the unpaid salary he actually proved.

What this practically means

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Executive summary

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The Claimant, an advocate engaged as a part-time lecturer by Karatina University between August 2014 and December 2016, sued for unpaid contractual dues of Kshs. 436,800/- for eight courses, declarations that the part-time contracts dated 24th March 2017 were null and void, declarations of wrongful termination and breach of fair labour practices, damages, a certificate of service and indemnity costs. The Respondent admitted liability for Kshs. 195,000/- gross (having already paid Kshs. 218,400/-), maintained the Claimant was a part-time lecturer engaged semester by semester, invoked the ILO Part-Time Work Convention No. 175, and asserted the Claimant failed to lodge claim forms triggering payment. The parties disposed of the suit by documents under Rule 21 of the ELRC Procedure Rules. The court held the Claimant was engaged on part-time basis, an arrangement recognised in the ILO Convention and under the Employment Act's concepts of piece work and task work. Although the ex post facto contracts were curiously dated, the Claimant - an advocate - executed them in acceptance and did not endorse them 'without prejudice', so they bound him. He failed to prove entitlement beyond the admitted Kshs. 195,000/-. The court entered judgment for the Claimant for Kshs. 195,000/- gross pay and awarded costs to scale on Kshs. 413,400/-, because the Claimant had to seek the court's interposition to recover admitted dues. Claims for declarations, damages for termination and unfair labour practice damages were not granted.

Key legal issues

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01

Nature of the Claimant's engagement

Holding

The Claimant was engaged on part-time basis, fitting the mould of piecework under the Employment Act read with the ILO Part-Time Work Convention, 1994 (No. 175)

Reasoning

The evidence annexed to the memorandum of claim showed part-time engagement. The contracts dated 24th March 2017 were executed in acceptance. The Employment Act recognises piece work and task work, and the ILO Convention defines part-time work. The lecturing method fitted piecework: pay was ascertained by work performed, with a defined period for execution.

p. 3
02

Entitlement to payment

Holding

The Claimant was entitled to pay for work done but proved only the admitted sum of Kshs. 195,000/-

Reasoning

The Respondent did not deny paying Kshs. 218,400/- and owed a further Kshs. 195,000/- gross. The Claimant could not demonstrate entitlement to more than that amount, so judgment was entered only for the conceded sum with costs.

p. 3
03

Validity of the 2017 contracts

Holding

The ex post facto contracts were valid and binding; no declaration of unlawfulness was made

Reasoning

Although the contracts were curiously dated 24th March 2017, the Claimant, an advocate of the High Court of Kenya, executed them in acceptance of the terms and did not endorse them 'without prejudice'. Offer and acceptance completed the contract.

p. 2

Legal principles established

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  • Part-time work is a recognised form of employment under international convention and Kenyan law, and piece work is work whose pay is ascertained by the amount of work performed irrespective of time occupied
  • Where an offer is made and acceptance given, a contract is complete; a party who signs and accepts contractual terms without endorsement 'without prejudice' is bound by them
  • A claimant who must seek the court's interposition to recover an admitted debt is entitled to costs

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for Kshs. 195,000/- gross pay
  2. 2.Costs to scale on the sum of Kshs. 413,400/-

Authorities

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Legislation

  • Employment ActSection 10
  • Employment ActSection 40
  • Employment ActSections 9 and 10
  • Employment & Labour Relations Court (Procedure) Rules 2016Rule 21
  • Constitution of KenyaArticle 41
  • Income Tax ActNot specified
  • International Labour Convention on Part-Time Work No. 175 of 1994Articles 1, 5 and 7

Cases cited (3)

  • Emmanuel Makoro v Permanent Secretary Office of the Prime Minister & 2 Others
    [2017] eKLR
  • Francis Maina Kamau v Lee Construction
    [2014] eKLR
  • Yvonne Achitsa Oderere v Maseno University
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment & Labour Relations Court (Procedure) Rules 2016 (Rule 21)

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, "Valentine Ataka v Karatina University [2019] KEELRC 445 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/445/eng@2019-10-31

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