Kisii University v Ondieki (Appeal E025 & E026 of 2022 (Consolidated)) [2023] KEELRC 2633 (KLR)
The bottom line
#Kenya's Employment Court cut a lecturer's salary award from Kshs 5.3 million to Kshs 2.16 million, confirming only three years of employment claims are recoverable.
What this practically means
#Executive summary
#Key legal issues
#Applicable limitation period for employment claims
Section 90 of the Employment Act, prescribing three years, applies; the Trial Court erred in applying the six-year period under Section 4 of the Limitation of Actions Act.
Section 90 of the Employment Act expressly overrides Section 4(1) of the Limitation of Actions Act for claims arising out of employment contracts. The suit was lodged on 9th September 2020, so only claims accruing within three years before that date, i.e. from September 2017, were properly before the court. Claims from 2012 to August 2018 fell outside the limitation period and the award in respect of them was set aside.
Whether limitation could be raised for the first time on appeal and via submissions
Yes; jurisdiction and limitation can be raised at any stage, even on appeal, and it is immaterial that the objection was raised through submissions or under the wrong statute.
Relying on Jamal Salim v Yusuf Abdulahi Abdi and Owners of Motor Vessel 'Lillian S', the court held that jurisdiction either exists or does not and cannot be conferred by consent or acquiescence. The question had in any event been raised before the trial court, which addressed it as its first issue, albeit under the wrong statute; the mischaracterisation did not cure the jurisdictional defect.
Verification of claims and burden of proof for salary arrears within the limitation period
Claims within the limitation period were due and owing; the employer's failure to keep records under Section 74 of the Employment Act could not be visited on the employee.
It was not disputed that the Respondent was retained as a part-time lecturer, and the Appellant's only complaint was lack of verification. As employer, the Appellant was obligated by Section 74 of the Employment Act to keep employee records; having failed to do so, it could not shift the burden to the employee. The trial court's award for September 2017 to September 2020 was upheld.
The Respondent's cross-appeal on the period the award relates to
The cross-appeal was dismissed as it could not stand given the three-year limitation period.
The Respondent sought a finding that the award of Kshs. 5,332,970.00 related to services rendered between September 2014 and August 2020. Since only claims from September 2017 onwards fell within limitation, the cross-appeal premises, like the pre-2017 claims, fell outside the court's jurisdiction and was dismissed.
Legal principles established
#- Limitation of actions in employment claims is governed exclusively by Section 90 of the Employment Act, which prescribes three years, and not Section 4 of the Limitation of Actions Act.
- A limitation/jurisdictional objection may be raised at any stage, even on appeal, even if first raised through submissions or pleaded under the wrong statute.
- An employer's failure to keep employee records as required under Section 74 of the Employment Act cannot be visited on the employee.
Court orders
#- 1.The Appellant's appeal partly succeeds
- 2.The cross-appeal is dismissed
- 3.The Trial Court's award of Kshs. 5,332,970/- on account of salary arrears is set aside, and the Respondent is instead awarded three-year salary arrears at Kshs. 2,160,000/-
- 4.The award of costs by the Trial Court is upheld
- 5.Parties shall bear their own costs of the appeal on account of dismissal of the cross-appeal
- On appeal from
- Chief Magistrate's Court at Kisii (Employment Cause)
- Kisii CMC Employment Cause No. 20 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court employment cause (Section 90 of the Employment Act, 2007 applied to the limitation question)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisii University v Ondieki (Appeal E025 & E026 of 2022 (Consolidated)) [2023] KEELRC 2633 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2633/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.