Osoro v University of Nairobi (Cause E720 of 2021) [2023] KEELRC 1376 (KLR)
The bottom line
#The Employment & Labour Relations Court ordered the University of Nairobi to pay a former Tutorial Fellow over Kshs 2.2 million in unpaid clinical allowances and discrimination damages.
What this practically means
#Executive summary
#Key legal issues
#Eligibility for clinical allowance under the Terms of Service
The Claimant, a Tutorial Fellow (equivalent of Assistant Lecturer), was eligible for clinical allowances under Clause 16[c] and Table V of the Terms of Service, which were incorporated into his contract; training grade was not excluded
The Terms of Service were incorporated in the letter of appointment and constituted the contract. Table V expressly listed Assistant Lecturer/Tutorial Fellow as beneficiaries of clinical allowances, and Table 1 captured Tutorial Fellow as teaching staff. Nothing excluded training grade. The Respondent's own pay slips showed it paid the Claimant Kshs 95,000 clinical allowance before enhancement, undermining its ineligibility argument.
Whether the return-to-work agreement bound the Respondent and entitled the Claimant to the enhanced rate
Yes; the enhanced rate of Kshs 168,000 applied and the Claimant was awarded arrears of Kshs 1,721,387 for January 2017 to December 18, 2018
The agreement bound the Union, County and National Governments. The Respondent, funded by the National Government, requested funds expressly pursuant to the agreement, and the schedule of allowances showed Tutorial Fellows classified as Assistant Lecturers at the enhanced rate of Kshs 168,000. Other colleagues in the same position were paid the enhanced benefit.
Relevance of the SRC circular
The September 14, 2015 SRC circular was irrelevant; it addressed health workers employed by County Public Service Boards, whereas the Claimant was a National Government employee of the University
The circular predated the 2017 return-to-work agreement and referred to Employees of County Public Service Boards. The Claimant was employed by the University of Nairobi on November 30, 2016. The SRC's only relevance was its advisory input to the return-to-work agreement itself.
Discrimination and damages
The Respondent discriminated against the Claimant contrary to Section 5 of the Employment Act and Articles 27 and 41 of the Constitution; general damages of Kshs 500,000 awarded, with Dr Mutuiri as a good comparator
The Respondent paid clinical allowance to the Claimant before enhancement, then declined to pay the enhanced allowance despite repeated demands, while colleagues like Dr Mutuiri (who received Kshs 2,455,200 in arrears) were paid. Discrimination continued after demand, as no reason was given in the reply declining payment.
Legal principles established
#- People doing similar work, or work of equal value, should receive equal pay; unequal pay must be shown to be caused by unlawful discrimination by the employer
- Under Section 20 of the Employment Act, the employer must give the employee a written itemized pay statement at or before payment of wages; uncertified pay slips exhibited by the employee carry weight where the employer produces no alternative version
- A university under the National Government need not have a recognition agreement with KMPDU to be bound by a return-to-work agreement executed between the Union, County Governments and the National Government
Court orders
#- 1.The record is corrected to indicate that the Cause is before the E&LRC Nairobi, not before the Magistrate's Court at Nairobi
- 2.Declaration that the Respondent's actions against the Claimant amounted to discrimination contrary to Section 5 of the Employment Act and Articles 27 and 41 of the Constitution of Kenya
- 3.The Respondent shall pay the Claimant arrears of clinical allowances at Kshs 1,721,387
- 4.The Respondent shall pay the Claimant general damages for pay discrimination at Kshs 500,000
- 5.Costs to the Claimant
- 6.Interest on the arrears of clinical allowances of Kshs 1,721,387 at court rate from June 29, 2020 till payment is made in full
- 7.Interest on general damages of Kshs 500,000 at court rate from the date of Judgment till payment is made in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment & Labour Relations Court at Nairobi (cause originally mis-indorsed as filed at the Magistrate's Court at Nairobi, corrected to E&LRC Nairobi)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osoro v University of Nairobi (Cause E720 of 2021) [2023] KEELRC 1376 (KLR)", Case Analysis (2023). Cause No E720 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1376/eng@2023-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.