Munene v United States International University (Cause 105 of 2019) [2024] KEELRC 1635 (KLR)
The bottom line
#Kenya's Employment Court ruled that a Professor underpaid on a lower salary scale for 17 years was discriminated against, awarding him over Kshs. 13 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim for remuneration withheld since September 2007 was time-barred
Not time-barred; the underpayment was a continuing act of discrimination/injury that renews the cause of action each month it persists.
The Claim was rooted in a continuing act or omission: the Claimant had been denied his rightful remuneration from September 2007 onwards. Each monthly salary cheque paid on the Associate Professor scale constituted a fresh discriminatory act resetting the cause of action. Where there is no cessation of continuous discrimination or injury, the cause of action resets in perpetuity, and the perpetrator determines when it arises by ceasing the injury. The preliminary objection on time-bar, though pleaded, was not argued and was declined.
Whether the Respondent discriminated against the Claimant by paying him on the Associate Professor scale after promoting him to full Professor
Yes; the Respondent discriminated against the Claimant continuously since 2007 and failed to prove any legitimate explanation.
The promotion letter of 29th June 2007 changed both job title and remuneration, payable on the new salary scale of a full Professor. The HRMIS continued to describe the Claimant as an Associate Professor and paid him accordingly for 17 years. The Respondent's explanations (failure to self-evaluate, discretionary increments, progressive adjustments) were pretextual: no disciplinary hearing was ever held for the alleged self-evaluation default, and the adjustments were pegged on the Associate Professor scale. Falsity of the employer's justification permits an inference of discrimination.
What remedies flow from the established discrimination
Arrears of basic salary, house allowance and pension contribution at the Claimant's computation of Kshs. 14,005,761 less the partial settlement of Kshs. 3,724,491.95, plus general damages of Kshs. 3,000,000 for constitutional violations, a declaration, corrective orders, costs and interest.
The Claimant's computation dating back to September 2007 was a persuasive and fair reflection of cumulative deprivation. The partial settlement paid under a consent was deductible. Damages were aggravated by the persistence of the violations and the Respondent's refusal to offer complete redress even when meeting the Claimant on 21st March 2022. The Court relied on precedent awarding Kshs. 3,000,000 for violations of fair labour practices and freedom from discrimination.
Legal principles established
#- A claim based on a continuing act of discrimination is not time-barred under Section 90 of the Employment Act; the cause of action resets each time the discriminatory act is repeated.
- In discrimination claims the Claimant must first establish facts from which discrimination may be presumed; the burden then shifts to the Employer to prove a legitimate, non-discriminatory explanation.
- Every worker has the right to fair remuneration encompassing equal pay for work of equal or comparable value under Article 41(2)(a) of the Constitution.
Court orders
#- 1.It is declared that failure by the Respondent, to pay the Claimant basic salary, house allowance and make full pension contribution, due to a full Professor, from September 2007 to-date, is unlawful, unfair and unconstitutional.
- 2.The Respondent shall pay to the Claimant arrears of basic salary, house allowance and pension contribution, at Kshs. 10,281,270; and damages for constitutional violations at Kshs. 3,000,000 – total Kshs. 13,281,272.
- 3.The Respondent shall ensure that the Claimant is hence referred to as a full Professor in all its communications, and is paid remuneration applicable to a full Professor.
- 4.Costs to the Claimant.
- 5.Interest granted at court rate, from the date of Judgment, till payment is made in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act and Articles 27 and 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munene v United States International University (Cause 105 of 2019) [2024] KEELRC 1635 (KLR)", Case Analysis (2024). Employment and Labour Relations Court Claim, Statement of Claim dated 19th February 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1635/eng@2024-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.