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ELRCAllowedELRC Cause (Nakuru) - Memorandum of Claim dated 22nd September, 2020, filed 23rd September, 2020· [2024] KEELRC 774 (KLR)

Chepkemoi v Maasai Mara University (Cause E001 of 2020) [2024] KEELRC 774 (KLR)

Employment and Labour Relations Court
16 April 2024
3,138 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed a part-time lecturer can win unpaid wages without a written contract, because employers must keep and produce employment records.

What this practically means

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Executive summary

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The claimant, engaged as a part-time lecturer by the respondent university from May to December 2015 and partly in 2016, sued for unpaid wages of Kshs.293,910/=, a certificate of service, interest and costs, contending that her oral contract of employment was never reduced to writing. The respondent denied the employment relationship, asserting that the claimant held no letter of appointment, and relied solely on the witness statement of its acting finance officer, Elkana Kimeli, and unsigned minutes of a special academia board meeting of 26th May 2012, neither of which was the subject of oral testimony. The court framed three issues: existence and terms of the contract, entitlement to reliefs, and costs. It held that a contract of service may be oral or written and that reducing it to writing is the employer's duty. The claimant's attendance lists, CAT records, timetables and student witness statements stood largely unchallenged because the respondent, the custodian of employment records, produced nothing to counter them. The witness statement admitted by consent was held to be of no value absent cross-examination, and the unsigned minutes were of no evidential value. Applying Section 119 of the Evidence Act and the balance of probabilities, the court found an oral contract existed and that the claim was proved. The respondent's suggested figure of Kshs.102,868.50 did not avail it, as no evidence was tendered. The court awarded the full claimed wages with interest, ordered issuance of a certificate of service within 30 days, and awarded costs to the claimant.

Key legal issues

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01

Existence and terms of the employment contract

Holding

An oral contract of service existed between the claimant and the respondent as a part-time lecturer, proved on a balance of probabilities despite the absence of a written appointment letter.

Reasoning

Section 2 of the Employment Act defines a contract of service as an agreement whether oral or written, and Section 8 applies the Act to oral contracts. The claimant produced class and examination attendance lists, CAT records and timetables, corroborated by student witness statements. The respondent, as custodian of employment records, failed to produce any records to counter hers. Applying Section 119 of the Evidence Act, the court presumed the existence of the employment relationship.

p. 6
02

Evidential value of the respondent's witness statement and unsigned minutes

Holding

The witness statement of Elkana Kimeli and the unsigned minutes of the special academia board meeting, although admitted by consent, added no value to the respondent's case.

Reasoning

Kimeli did not attend court to be cross-examined, so his statement amounted to mere denial. The minutes bore no signatures of the alleged attendees and were therefore of no evidential value. Documents do not become evidence unless produced by consent or through a competent witness and subjected to admissibility tests as laid out in Kenneth Nyaga Mwige v Austin Kiguta & 2 Others.

p. 3
03

Entitlement to unpaid wages and certificate of service

Holding

The claimant was awarded the claimed Kshs.293,910/= in unpaid wages with interest, and a certificate of service under Section 51(1) of the Employment Act.

Reasoning

The claimant demonstrated how the figure was computed for lecturing services rendered at the respondent's request; the respondent tendered no evidence to dislodge the claim. Section 51(1) obliges an employer to issue a certificate of service upon termination unless employment lasted less than four consecutive weeks.

p. 6

Legal principles established

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  • A contract of service may be oral or written, and it is the employer's legal duty to reduce an oral contract of service to writing.
  • A filed witness statement does not of itself amount to evidence unless admitted by consent with the concurrence of the court; what becomes evidence is the testimony in court subject to cross-examination.
  • Where an employer, as custodian of employment records, disputes a claim but fails to avail records to counter the employee's records, the employee's claim may be proved on a balance of probabilities.

Court orders

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  1. 1.Unpaid wages awarded at Kshs.293,910/= as claimed
  2. 2.The above amount shall earn interest at court rates from the date of judgment till payment in full
  3. 3.The respondent shall issue and deliver to the claimant a certificate of service within 30 days of the judgment
  4. 4.Costs of the cause and interest thereon to the claimant

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 8
  • Employment ActSection 9(1) and (2)
  • Employment ActSection 10
  • Employment ActSection 17
  • Employment ActSection 51(1)
  • Employment ActSection 74
  • Constitution of KenyaArticle 41
  • Evidence ActSection 107
  • Evidence ActSection 119

Cases cited (3)

  • Kenneth Nyaga Mwige V Austin Kiguta & 2 Others
    (2015) eKLR
  • Simon Ndicu vs Karatina University
    Nairobi ELRC Cause No. 755 of 2018
  • Council of Civil Service Unions vs Minister for the Civil Service
    [1984] 2 ALL 935
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act; Article 41 of the Constitution cited on fair labour practices)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chepkemoi v Maasai Mara University (Cause E001 of 2020) [2024] KEELRC 774 (KLR)", Case Analysis (2024). ELRC Cause (Nakuru) - Memorandum of Claim dated 22nd September, 2020, filed 23rd September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/774/eng@2024-04-16

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