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ELRCAllowedELRC Cause (Eldoret) - Claim dated 23rd October 2017· [2023] KEELRC 1691 (KLR)

Omondi v Moi University (Cause 328 of 2017) [2023] KEELRC 1691 (KLR)

Employment and Labour Relations Court
13 July 2023
MOMAUREEN ONYANGO
1,955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Eldoret awarded a part-time lecturer nearly Kshs 1 million because emails and a duty allocation letter proved she worked for Moi University even without a written contract.

What this practically means

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Executive summary

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The Claimant sued Moi University seeking Kshs 999,050 in remuneration and terminal dues for services as an external part-time lecturer at the Respondent's Mogotio Campus (December 2013 to August 2016, when the campus closed) and Nakuru Campus (September 2015 to December 2016). She claimed Kshs 735,750 for lecturing, Kshs 17,400 for setting examinations, Kshs 1,900 for marking, and Kshs 244,000 for transport allowance, plus costs and interest. The Respondent denied ever employing her, asserting no contract of employment or agreed mode of remuneration existed. At the hearing, the Claimant testified as CW1, relying on attendance records, email correspondence with supervisors, and a letter dated 12th June 2016 from the head of department allocating part-time classes. The Respondent's witness (RW1) denied knowledge of the letter and produced unsigned, unstamped database printouts. The court framed two issues: whether a contract of employment existed, and whether the Claimant was entitled to the orders sought. Applying Casmur Nyankuru Nyaberi v Mwakikar Agencies Limited and sections 2 and 9(3) of the Employment Act, the court held that the stamped allocation letter and email correspondence established an employer-employee relationship despite the absence of a written contract. Finding the Claimant's tabulation consistent with the Moi University Policy on Part-Time Lecturing rates, and unchallenged by the Respondent, the court awarded the full Kshs 999,050, plus costs of the suit and interest from the date of filing until payment in full.

Key legal issues

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01

Whether a contract of employment existed between the Claimant and the Respondent

Holding

A contract of service existed; the Respondent engaged the Claimant as a part-time lecturer, establishing an employer-employee relationship.

Reasoning

The court relied on a letter dated 12th June 2016 signed and stamped by the head of department Dr David Wanyonyi allocating part-time classes to the Claimant, and on email correspondence between the Claimant and her supervisors. The court noted the Employment Act requires employers to reduce contracts of employment into writing, and section 2 defines a contract of service as an agreement whether oral or in writing. RW1's denial and unsigned database printouts did not displace this evidence.

p. 4
02

Whether the Claimant is entitled to the orders sought (Kshs 999,050 terminal dues)

Holding

The Claimant was awarded the full sum of Kshs 999,050 as prayed, comprising lecturing fees, examination setting and marking fees, and transport allowance.

Reasoning

The court considered the Claimant's breakdown and the undergraduate Part-Time payments form and the Moi University Policy on Part-Time Lecturing (Undergraduate 2013 & Postgraduate 2014), Table 5 of page 10, which set out rates for teaching, setting, marking and transport/accommodation allowances. The court found the Claimant's tabulation aligned with the policy rates, and the Respondent had not contested the breakdown, only the existence of the employment relationship.

p. 5

Legal principles established

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  • It is the responsibility of an employer to document the employment relationship, and the burden of proving or disproving a term of employment may shift to the employer, though the claimant retains the overall burden of proving their case.
  • An employer-employee relationship may be established by documentary evidence such as correspondence and work allocation letters even where no written contract exists, since a contract of service may be oral or in writing.

Court orders

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  1. 1.Award of Kshs 999,050 to the Claimant as terminal dues/remuneration as prayed
  2. 2.Respondent to pay the Claimant's costs of the suit
  3. 3.Interest to accrue from date of filing suit until payment in full

Authorities

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Legislation

  • Employment Actsection 9(3)
  • Employment Actsection 2 (definition of contract of service)

Cases cited (1)

  • Casmur Nyankuru Nyaberi v Mwakikar Agencies Limited
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction founded on the existence of an employment relationship 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, "Omondi v Moi University (Cause 328 of 2017) [2023] KEELRC 1691 (KLR)", Case Analysis (2023). ELRC Cause (Eldoret) - Claim dated 23rd October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1691/eng@2023-07-13

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