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ELRCAllowedNot stated in the judgment· [2021] KEELRC 1260 (KLR)

John Mwaninki & 10 others v Kenya Institute of Management [2021] KEELRC 1260 (KLR)

Employment and Labour Relations Court
13 July 2021
HWHellen Wasilwa
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ordered Kenya Technical Trainers College to pay three teachers over Kshs. 5 million in unpaid salary arrears after the college failed to defend the claim.

What this practically means

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Executive summary

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Three claimants, employees of the respondent engaged to teach diploma, certificate and short courses and to offer consultancy services, filed a memorandum of claim dated 8 February 2016 seeking salary arrears of Kshs. 5,020,348. They alleged that from July 2017 the respondent failed to pay salaries on time and withheld others without explanation; that a demand letter of 9 May 2018 elicited an internal memo from the respondent acknowledging the arrears and promising month-to-month payment; and that a payment made on 10 September 2018 remained disputed. A labour officer declined jurisdiction on 12 November 2018, leading to this suit. The respondent entered appearance through Muli and Company Advocates on 27 March 2019 but filed no response, so the claim proceeded undefended on 4 May 2021, with the 3rd claimant, Evans Ombongi, testifying and adopting witness statements and documents. The court found the timetables and payment claim forms proved that the claimants were employed, scheduled to teach and administered examinations, but that there was no evidence they were paid. Holding the case uncontroverted, the court found the claimants had established their case as prayed and entered judgment for Kshs. 5,020,348 less statutory deductions, plus costs and interest at court rates from the date of judgment, delivered on 13 July 2021.

Key legal issues

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01

Whether the claimants proved they rendered services for which they were not paid

Holding

The claimants established their case on a balance of probability, the claim being uncontroverted

Reasoning

The claimants produced timetables showing they were scheduled to teach on diverse dates and administered examinations, plus payment claim forms. The respondent filed no defence and did not participate in the hearing. The court found documentary evidence of employment and service, but no evidence of payment, and held the claim proved as prayed.

p. 2
02

Whether the withholding of salaries contravened the Employment Act and Article 41

Holding

Withholding salary without explanation breached statutory obligations to pay wages when due

Reasoning

Counsel submitted that failure to pay salaries when due contravened section 18 of the Employment Act, and that the withholding contravened section 25(1) and amounted to an unfair labour practice under Article 41. The respondent's own memo acknowledged the arrears and promised payment monthly, which remained unfulfilled. The court accepted the claim as uncontroverted and granted judgment as prayed.

p. 2

Legal principles established

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  • Payment of wages as contractually agreed is a fundamental right and basic condition of employment from which no employer may derogate

Court orders

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  1. 1.Judgment entered for the claimants for Kshs. 5,020,348 less statutory deductions
  2. 2.Respondent to pay costs of the suit
  3. 3.Interest on the decretal sum at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsection 18
  • Employment Actsection 25(1)
  • Constitution of Kenya, 2010Article 41

Cases cited (2)

  • Migotiyo Plantation Limited v Kenya Plantation & Agricultural Workers Union
    [2016] eKLR
  • Donald C. Avude v Kenya Forest Service
    [2015] eKLR
Jurisdiction invoked
Article 41 of the Constitution and the Employment Act, 2007 (employment and labour relations dispute)

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 Mwaninki & 10 others v Kenya Institute of Management [2021] KEELRC 1260 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1260/eng@2021-07-13

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