Ogola v Maasai Mara University Council (Employment and Labour Relations Cause 59 of 2019) [2023] KEELRC 676 (KLR)
The bottom line
#A Kenyan court ordered Maasai Mara University to pay a former professor Kshs 1.88 million in unpaid dues after the university chose not to defend the case at hearing.
What this practically means
#Executive summary
#Key legal issues
#Effect of an uncontroverted claim where the respondent calls no evidence
The claimant's case remained uncontroverted and was proved as prayed; judgment entered on the amounts proved
The claimant gave evidence and produced documents proving the sums due for pension remittance, part-time teaching, supervision fees and unpaid salary. The respondent filed a response denying the claim but opted not to call any witness. The court found the allegations that the claimant breached the contract and did not come with clean hands were unsubstantiated and unsupported by any evidence, so the claim succeeded on the proved heads.
Entitlement to remittance of pension deductions
Deducted pension contributions of Kshs. 300,000 not remitted were payable to the claimant
The claimant showed that Kshs. 50,000 was deducted monthly for six months for the self-contributory pension scheme and never remitted. Section 19 of the Employment Act permits an employer to deduct dues for remittance to a pension scheme, and the respondent did not deny making the deductions. The unremitted amount was therefore due to the claimant.
Limitation in respect of employment dues
Recovery of arrears or underpaid salary is not defeated by limitation under section 90 of the Employment Act because such default is continuing (per authority relied on by the claimant)
Relying on Kalura Hussein Noor v Kaderdian Hajee Essak Limited, which adopted David Wanjau Muhoro v Ol Pajeta Ranching Limited, the claimant argued that arrears of salary and underpayments involve a continuing default by the employer and time only runs from cessation of the default. The claim for self-sponsored student teaching payments related to the period 2013 to May 2017 when he resigned.
Legal principles established
#- Where an employer deducts statutory contributions such as pension and fails to remit them, the employee is entitled to recover the deducted sums
- Arrears of salary and underpayments involve a continuing default by the employer; time runs only from cessation of the default (as per David Wanjau Muhoro v Ol Pajeta Ranching Limited, adopted by the claimant)
Court orders
#- 1.Payment of Kshs. 300,000 deducted for the pension scheme and not remitted
- 2.Payment of unpaid part-time teaching fees of Kshs. 1,176,750
- 3.Payment of unpaid supervision fees of Kshs. 105,000
- 4.Payment of July and part of August 2017 salaries of Kshs. 300,000
- 5.Total award of Kshs. 1,881,750 less statutory deductions
- 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogola v Maasai Mara University Council (Employment and Labour Relations Cause 59 of 2019) [2023] KEELRC 676 (KLR)", Case Analysis (2023). Memorandum of Claim dated September 5, 2019 (Amended October 31, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/676/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.