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ELRCOtherEmployment and Labour Relations Court Claim dated January 20, 2023 (Nakuru)· [2023] KEELRC 2585 (KLR)

Ombega v Kenyatta University (Employment and Labour Relations Cause E010 of 2023) [2023] KEELRC 2585 (KLR)

Employment and Labour Relations Court
24 October 2023
HWHellen Wasilwa
2,678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that employer-generated payslips alone don't prove payment, and part-time lecturers' pay depends on class size, not a flat rate per unit.

What this practically means

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Executive summary

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The claimant, employed by the respondent university as a part-time lecturer at Kshs 2,300 per contact hour between 2018 and 2022, sued for unpaid teaching dues of Kshs 1,470,500, computed at a fiat rate of Kshs 80,500 per unit for seventeen units taught, plus transport allowance and costs. The respondent admitted the engagement but contended the claimant was paid for several items (allegedly Kshs 442,750), that items (d) and (i) were duplicated as (e) and (k), that some units were never taught, and that appointment was provisional on classes attaining a quorum of 15 students, with an internal memo providing pro-rata payment (70%, 50% or 15%) for non-quorate classes. It also raised a jurisdictional objection that the claim fell within the magistrates' court's pecuniary jurisdiction. The claimant relied on Peterson Guto Ondieki v Kisii University, arguing the respondent produced no EFT advice, bankers' cheque or bank statement to prove payment, and that RW-1 admitted payslips are not confirmation of payment. The court held that payslips generated by the respondent and unsigned by the claimant were not proof of payment, but also that the claimant was not entitled to the fiat rate, payment depending on student numbers per class, which the claimant failed to prove. To avoid a miscarriage of justice, the court referred the parties back to negotiation and conciliation on the calculation of the dues, reserving determination by the court from the evidence on record if they failed to agree. No costs order was made. The judgment contains minor internal inconsistencies regarding which party admitted duplication and which items were paid.

Key legal issues

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01

Proof of payment by employer

Holding

Payslips produced by the respondent, unacknowledged by the claimant, do not conclusively prove payment

Reasoning

The court found the respondent's documentary proof of payment consisted only of payslips generated by the respondent itself and bearing no signature of the claimant. RW-1 also admitted in cross-examination that a payslip is not a confirmation of payment. No EFT advice, bankers' cheque or bank statement was produced to evidence payment of Kshs 442,750 alleged by the respondent.

p. 6
02

Entitlement to fiat rate versus pro-rata payment

Holding

Payment depended on class size per the internal memo; the claimant was not entitled to Kshs 80,500 per unit regardless of quorum

Reasoning

The appointment letters made the appointment provisional on the unit attaining the recommended class size, and the memo from the DVC Academic set percentage payments based on student numbers (100% for 15+, 70% for 10-14, 50% for 5-9, 15% below 5). The claimant did not produce evidence of the number of students per unit to enable computation of his dues.

p. 6
03

Burden of proof on items claimed

Holding

Items repeated or not supported by appointment letters or proof of teaching could not be awarded as claimed

Reasoning

The claimant admitted duplicating items (d) and (e). The respondent disputed items (h) and (p) as not taught and contended others were paid. The claimant bore the burden under section 107(1) of the Evidence Act to prove each item claimed, including student numbers per unit, which he did not discharge.

Legal principles established

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  • Payslips generated by an employer are not proof of payment where unsigned by the employee
  • Where a part-time lecturer's appointment is provisional on class size, payment follows pro-rata rates depending on student numbers rather than a fiat rate per unit

Court orders

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  1. 1.Parties are referred back to the negotiating table for calculation of the dues owed
  2. 2.Parties referred for conciliation on the issue of the calculation of the figures, to submit the same to court
  3. 3.In the alternative, the court will determine the figures as per the evidence on record if parties fail to agree

Authorities

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Legislation

  • Evidence Actsection 107(1)

Cases cited (1)

  • Peterson Guto Ondieki V Kisii University
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (objection raised on pecuniary jurisdiction of the magistrates' court was not determined)

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, "Ombega v Kenyatta University (Employment and Labour Relations Cause E010 of 2023) [2023] KEELRC 2585 (KLR)", Case Analysis (2023). Employment and Labour Relations Court Claim dated January 20, 2023 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2585/eng@2023-10-24

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