Wekesa v Multimedia University of Kenya (Cause 1682 of 2016) [2022] KEELRC 1507 (KLR)
The bottom line
#A Kenyan employer cannot cut an employee's allowances without first consulting them, but employees must plead every claim clearly to win fully in court.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to allowances under the return to work formula dated 14th March 2014
The issue was not pleaded and the Court declined jurisdiction over it
The amended memorandum of claim contained neither a narration of entitlement to the allowances nor a specific prayer for them; the issue emerged only in cross-examination. Relying on the principle that parties are bound by their pleadings, the Court held it could not award unpleaded relief and lacked jurisdiction to determine the issue.
Whether the Respondent unilaterally varied the contract of employment
The Respondent discontinued the allowances without consulting the Claimant as required by section 10(5) of the Employment Act, but full restoration was refused; half of the withdrawn allowances were awarded up to judgment
Section 10(5) requires consultation and written notification before varying contractual terms. The Respondent appointed another person as In-charge and discontinued allowances without consultation, and bore the burden under section 10(7) of disproving entitlement after failing to produce the appointment letter or job description, the proffered job description lacking authenticity. The Claimant was awarded half the unpaid allowances up to the judgment date rather than restoration, in the interest of justice.
General damages for psychological torture and malignment of name
Dismissed for want of particulars and evidence
The Claimant particularised neither the alleged psychological torture nor the malignment of his name, led no evidence of loss, and did not plead a constitutional violation with the particulars required by the Anarita Karimi Njeru standard. The claim failed on a balance of probability.
Perpetual restraint on interfering with the employment contract
Declined
A prospective order of that nature requires credible and cogent evidence of a likelihood of interference; the Claimant had been reinstated and remained in employment without incident, and did not even avail his contract of employment to the Court.
Legal principles established
#- Any variation of the basic terms of a contract of employment requires consultation with, and written notification to, the employee under section 10(5) of the Employment Act
- Where an employer fails to produce the written contract or written particulars, the burden of proving or disproving the alleged term of employment rests on the employer
- A constitutional issue must be pleaded with particulars of the violation, the Articles violated and the extent of the violation
- Parties are bound by their pleadings and a court cannot grant relief not pleaded
Court orders
#- 1.Payment of ½ of the responsibility and entertainment allowances and airtime refund from the date the allowances were withdrawn to the date of the judgment
- 2.Costs of the suit to the Claimant
- 3.Interest at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- First-instance jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muchoki v Nakuru Water & Sanitation Services Co. Ltd (Employment and Labour Relations Cause E002 of 2023) [2023] KEELRC 1428 (KLR)[2023] KEELRC 1428 (KLR)15 Jun 2023
Cite this brief
#Cite this brief
Caselaw, "Wekesa v Multimedia University of Kenya (Cause 1682 of 2016) [2022] KEELRC 1507 (KLR)", Case Analysis (2022). Memorandum of Claim dated 20th August 2016, filed 23rd August 2016 (as amended 9th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1507/eng@2022-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.