Francis X. O. K’ombut v University of Nairobi [2020] KEELRC 160 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Limitation under Section 4(1) of the Limitation of Actions Act and Section 90 of the Employment Act
The suit was filed within the limitation period because the cause of action accrued when the Defendant rejected the Plaintiff's request for salary adjustment in March 2012, shortly before the suit was filed
The Defendant's submissions pegged accrual at 2004, but the Plaintiff was in continuous service from 1980 to 2012 and the claim concerned underpayments over that continuous period. Following Ashioya v Akshar Team Security, employment benefits vest over time and the event triggering the claim was the Defendant's letter of 7th March 2012 rejecting salary adjustment. The suit filed in 2012 was therefore within the three-year period under Section 90. The preliminary objection was found unmerited and apparently abandoned.
Whether the wrong Defendant was sued (UNES instead of the University)
The Defendant was properly sued; UNES was merely a funding vehicle for Module II payments to the Defendant's own staff
The letter of appointment, promotion letter, terms of service and correspondence were all from the Defendant. The internal memo of 3rd September 2002 showed the programme and staff were the Defendant's; UNES only held Module II funds. There was no evidence UNES had employees or made payment decisions.
Whether the Plaintiff proved discrimination and breach of terms of service
Breach of terms of service was proved (he was paid less than his grade entitled him), but discrimination was not proved for lack of comparators
The salary scale at Table II of the Terms of Service showed the Chief Technologist in grade (d) with Lecturers, and the Vice Chancellor's memo directed payment of technologists under Module II from the 35% direct-service allocation. However, the Plaintiff did not produce conclusive evidence that other employees in the same grade in comparable departments were remunerated differently, which Ol Pajeta Ranching requires for pay discrimination claims.
Entitlement to the prayers sought
The Plaintiff established entitlement to arrears but not the exact quantum; the court directed the Defendant to tabulate the shortfall for final judgment, the burden effectively shifting to the employer for record-keeping
Sections 10 and 74 of the Employment Act require employers to keep records sufficient to ascertain payments due at termination and to produce them in court, failing which the burden shifts. Since the Plaintiff proved entitlement but not the figure, and Module II payments varied monthly, the court ordered the Defendant to compute the shortfall within 60 days, with the Plaintiff free to file a countervailing tabulation within 30 days.
Legal principles established
#- In employment claims for salary arrears accruing over a continuous employment period, the cause of action accrues at termination or upon refusal of payment, not at each alleged underpayment
- Where an employee establishes entitlement to payment but the exact figure is unproven, and the employer is the party required to keep payment records under Sections 10 and 74 of the Employment Act, it is against substantive justice to deny relief solely for failure to prove the exact amount
- In pay discrimination claims a plaintiff must establish comparators to show unequal pay
Court orders
#- 1.Finding that the Plaintiff was paid less than what he was entitled to under the Terms and Conditions of Service for Academic, Senior, Library and Administrative Staff of the Defendant
- 2.Direction that the Defendant tabulate and present to court the amount payable to the Plaintiff under those Terms of Service less what was paid, within 60 days, for purposes of final judgment; if the Plaintiff disagrees, he should within 30 days file his own tabulation for final determination
- 3.The case to be mentioned after 3 months on a date to be set at the time of judgment
- 4.The Defendant to pay the Plaintiff's costs of the suit
- Jurisdiction invoked
- Jurisdiction over employer-employee dispute in the first instance; suit transferred from Milimani Commercial Court by order dated 26th June 2015 (Employment and Labour Relations Court jurisdiction under Section 12 of the Labour Institutions Act discussed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis X. O. K’ombut v University of Nairobi [2020] KEELRC 160 (KLR)", Case Analysis (2020). Civil Case No. 5666 of 2012 (transferred from Milimani Commercial Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/160/eng@2020-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.