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ELRCDismissedKisumu Appeal No. E022 of 2023· [2024] KEELRC 1247 (KLR)

Kisii University v Orere (Appeal E022 of 2023) [2024] KEELRC 1247 (KLR)

Employment and Labour Relations Court
15 May 2024
781 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Kisii University appealed to the Employment and Labour Relations Court at Kisumu against a decision of a Senior Principal Magistrate who had allowed a former part-time lecturer's claim for unpaid remuneration from September 2015 to May 2017. The Magistrate had found claims up to April 2016 (Kshs 95,000/-) time-barred under section 90 of the Employment Act, 2007, but allowed the balance of Kshs 606,336/-. The University advanced seven grounds, including that the entire claim was time-barred, that the Respondent failed to follow internal claims procedures, and that the orders were ambiguous. Radido Stephen, J. restated the first appellate court's duty, per Kamau v Mungai (2006) 1 KLR 150, to re-evaluate the evidence and reach independent conclusions with due allowance for not having seen the witnesses. On limitation, the Court held that since suit was filed on 27 May 2019, claims from May 2016 to May 2017 fell within the three-year prescription. On proof, the University's own witness admitted part-payments made in April and December 2017, which presupposed that the Respondent had submitted a claim; further, the Circular governing claims processing was dated 4 September 2018, after the claims had accrued and after the Respondent's separation, and could not be applied retrospectively to deny his entitlements. The Court found no merit in the appeal, dismissed it, and awarded costs to the Respondent. Judgment was delivered virtually in Kisumu on 15 May 2024.

Key legal issues

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01

Limitation of claims under section 90 of the Employment Act

Holding

Only claims up to April 2016 (Kshs 95,000/-) were time-barred; claims from May 2016 to May 2017, sued on 27 May 2019, were within the three-year prescription.

Reasoning

The Respondent claimed breach of contract for unpaid remuneration up to May 2017 and filed suit on 27 May 2019. The three-year period under section 90 of the Employment Act, 2007 therefore covered the claims from May 2016 onwards. The trial Magistrate correctly struck out only the earlier claims amounting to Kshs 95,000/-.

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02

Proof of the claim for Kshs 606,336/13 despite internal claim-processing procedures

Holding

The claim was proved: the Appellant admitted the head of claim, made part-payments in April and December 2017 (which presupposed submission of a claim), and the Circular on claims processing was introduced only in September 2018, after the claims accrued.

Reasoning

The Appellant's witness admitted in cross-examination that part-payment was made and that it would not have been made absent a claim submission. The Circular dated 4 September 2018 postdated the claims period and the Respondent's separation, so it could not retrospectively defeat his entitlement. The trial Magistrate's finding was sound.

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Role of a first appellate court

Holding

The Court must re-evaluate the evidence and reach its own conclusions, making allowance for not having seen or heard the witnesses.

Reasoning

Relying on Kamau v Mungai (2006) 1 KLR 150, the Court restated the duty of a first appellate court to re-assess the evidence afresh while according due deference to the trial court's advantage of observing witnesses, then applied that standard to the Record of Appeal.

p. 2

Legal principles established

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  • On a first appeal, the court must re-evaluate the evidence and reach its own conclusions while making due allowance for not having seen or heard the witnesses.
  • A claim lodged within three years of accrual under section 90 of the Employment Act is not time-barred.
  • An internal claims-processing procedure introduced after the employee fulfilled his contractual obligations cannot be used to deny him his entitlements.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs to the Respondent
On appeal from
Senior Principal Magistrate's Court
Jurisdiction invoked
First appellate jurisdiction over the Senior Principal Magistrate's Court (employment matter); Memorandum of Appeal lodged on 20 April 2023

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, "Kisii University v Orere (Appeal E022 of 2023) [2024] KEELRC 1247 (KLR)", Case Analysis (2024). Kisumu Appeal No. E022 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1247/eng@2024-05-15

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