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ELRCPartially AllowedMemorandum of Claim dated September 5, 2019 (Amended October 31, 2019)· [2023] KEELRC 676 (KLR)

Ogola v Maasai Mara University Council (Employment and Labour Relations Cause 59 of 2019) [2023] KEELRC 676 (KLR)

Employment and Labour Relations Court
16 March 2023
1,384 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a former associate professor employed by Maasai Mara University on October 7, 2011, sued the university alleging non-remittance of pension deductions, unpaid leave, unpaid part-time teaching and supervision fees for self-sponsored students, unpaid salary for July and part of August 2017, and unreimbursed medical claims. He resigned by letter of May 10, 2017, accepted on June 16, 2017, and cleared from the university between July and September 2017. The respondent admitted the employment relationship but denied the entire claim, alleging the claimant breached the contract and did not approach the court with clean hands, though it furnished no particulars. The respondent did not call any witness at the hearing. The claimant testified and produced documents supporting his claim, and relied on authority to the effect that arrears of salary involve a continuing default not defeated by limitation under section 90 of the Employment Act. The court found the claim uncontroverted and proved, and entered judgment for the claimant in the sum of Kshs. 1,881,750, comprising Kshs. 300,000 in unremitted pension deductions, Kshs. 1,176,750 in unpaid part-time teaching, Kshs. 105,000 in unpaid supervision fees, and Kshs. 300,000 in unpaid salary, less statutory deductions. The respondent was ordered to pay costs with interest at court rates from the date of judgment. No award was made on the pending leave or medical claims heads.

Key legal issues

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01

Effect of an uncontroverted claim where the respondent calls no evidence

Holding

The claimant's case remained uncontroverted and was proved as prayed; judgment entered on the amounts proved

Reasoning

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.

p. 3
02

Entitlement to remittance of pension deductions

Holding

Deducted pension contributions of Kshs. 300,000 not remitted were payable to the claimant

Reasoning

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.

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03

Limitation in respect of employment dues

Holding

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)

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Payment of Kshs. 300,000 deducted for the pension scheme and not remitted
  2. 2.Payment of unpaid part-time teaching fees of Kshs. 1,176,750
  3. 3.Payment of unpaid supervision fees of Kshs. 105,000
  4. 4.Payment of July and part of August 2017 salaries of Kshs. 300,000
  5. 5.Total award of Kshs. 1,881,750 less statutory deductions
  6. 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

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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, "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.