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ELRCDismissedNot stated in the judgment as provided· [2020] KEELRC 1154 (KLR)

Colbert Ouma Ojiambo v Mount Kenya University [2020] KEELRC 1154 (KLR)

Employment and Labour Relations Court
23 April 2020
MOMaureen Onyango
1,648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A part-time law lecturer lost his claim for unpaid teaching fees because he couldn't prove the agreed rate or that money never reached his account.

What this practically means

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Executive summary

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The claimant, an advocate, was engaged orally by the respondent university to teach three classes at its Nairobi school of law as a part-time lecturer during the January to May 2015 semester, teaching 135 hours over 15 weeks. The facts were largely uncontested; the dispute concerned the agreed hourly rate and whether payment was made. The claimant sought Kshs.378,000 (135 hours at Kshs.2,800) plus interest at 16% per month for three months, interest at court rates, and costs. The respondent maintained the agreed rate was Kshs.2,000 per hour and that it paid Kshs.234,000 gross less tax, in two instalments of Kshs.114,107 and Kshs.58,507, into the claimant's bank account. The court framed three issues: the hourly rate, the total payable, and whether payment was made. On the rate, the court held that Section 10(7) of the Employment Act protects disadvantaged employees and did not apply to a law lecturer; the respondent's payment schedules dated 2015 corroborated the Kshs.2,000 rate, while the claimant's figure had no backing. The respondent's custom argument failed for want of evidence. On payment, the respondent produced bank-stamped payment instructions, while the claimant's bank statements covered only narrow periods and he made no effort to confirm non-receipt with his bank. The court found payment was proved and dismissed the claim with costs. The judgment was delivered remotely pursuant to COVID-19 directions, relying on Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act.

Key legal issues

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01

Rate of pay under the oral contract

Holding

The rate of payment was Kshs.2,000 per hour as contended by the respondent, corroborated by payment schedules prepared in 2015; the claimant's figure of Kshs.2,800 had no evidential backing.

Reasoning

The contract was oral and unwritten. The court held Section 10(7) of the Employment Act protects disadvantaged employees and did not extend to a law lecturer. The respondent produced a Framework of Payments (though dated 2017) and payment schedules dated 2015 relating to the claimant and other lecturers. The claimant produced nothing to support his asserted rate. The respondent's custom argument failed for want of evidence, but the contemporaneous documents established the Kshs.2,000 rate.

p. 2
02

Whether payment was made

Holding

The respondent proved payment of the amounts owed into the claimant's account; the claimant failed to disprove receipt.

Reasoning

The respondent produced internal payment documents and bank-stamped payment instructions showing transfers of Kshs.114,107 on 12 June 2015 and Kshs.59,509 on 21 August 2015 to the claimant's account. The claimant produced bank statements for only two narrow windows and did not show why those dates were the expected payment dates nor rule out later receipt. Once proof of payment was given, the burden shifted to the claimant to confirm non-receipt with his bank, which he failed to do.

p. 2

Legal principles established

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  • Where the contract is oral, the onus of proving its terms, including the agreed rate of pay, rests on the claimant.
  • Section 10(7) of the Employment Act, protecting disadvantaged employees, does not apply to a professional such as a law lecturer engaged on an oral contract.
  • A party alleging non-receipt of payment into its bank account must confirm with the bank and cannot rely on statements covering only a narrow period; mere denial is insufficient.
  • A party asserting a term by custom or tradition must adduce evidence to establish the custom.

Court orders

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  1. 1.The claim is dismissed
  2. 2.The claimant shall pay the costs of the suit

Authorities

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Legislation

  • Employment ActSection 10(7)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (1)

  • Frank Mwangi Wanyeki v Bata Shoes (K) Limited
    (2010) eKLR
Jurisdiction invoked
Employment and labour relations dispute before the Employment and Labour Relations Court; no specific constitutional or statutory jurisdictional provision invoked

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, "Colbert Ouma Ojiambo v Mount Kenya University [2020] KEELRC 1154 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1154/eng@2020-04-23

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