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ELRCPartially AllowedAppeal No E030 of 2023· [2024] KEELRC 2545 (KLR)

Council, Kisii University & another v Ouma (Appeal E030 of 2023) [2024] KEELRC 2545 (KLR)

Employment and Labour Relations Court
23 October 2024
3,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's ELRC threw out most of a part-time lecturer's award because he sued too late, sending only his 2017 claims back to be recalculated.

What this practically means

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Executive summary

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This is the Employment and Labour Relations Court at Kisumu's judgment in a first appeal against the decision of Hon. J. N. Wambilyanga SPM in Kisumu CM ELRC No. 25 of 2020, which had awarded the Claimant, a part-time lecturer at the Appellant University's Kisumu Campus, Kshs.993,000.00 being Kshs.1,200,000.00 for 20 course units at Kshs.60,000.00 per unit less Kshs.207,040.00 paid. The appeal challenged the evaluation of evidence, limitation, and the quantum of the award. Gakeri J. rehearsed the first appellate duty to re-evaluate evidence, and found that although the Respondent established service under distinct fixed-term contracts, he tendered no complete claim under the Appellant's SSP Policy, no evidence of when any claim was lodged, and no tabulation of individual claims; only 9 of about 31 sampled classes exceeded 15 students, so the flat rate could not be presumed. On limitation, the Court held that Section 90 of the Employment Act is mandatory, that each concluded fixed-term contract generated a distinct cause of action, and that claims not sued upon by 12th February 2017 were statute barred and unenforceable for want of jurisdiction - a defect Article 159(2)(d) cannot cure. The Court set aside the trial judgment in its entirety and directed the parties to tabulate and file the Claimant's entitlement for course units taught and examined in 2017 within 30 days for adoption, with each party bearing its own costs.

Key legal issues

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01

Adequacy of the trial Court's evaluation of evidence

Holding

The trial Court's evaluation was faulty; it failed to consider the claim procedure, the proration threshold, and the absence of evidence of when complete claims were lodged

Reasoning

The Respondent tendered substantial documentary evidence but no complete claim for any period, no evidence of when claims were submitted, and no tabulation of individual claims. Of about 31 examination attendance sheets, only 9 classes had more than 15 students, so the flat rate of Kshs.60,000.00 per unit could not be assumed. The trial Court's global computation of 20 units at Kshs.60,000.00 was therefore a misdirection.

p. 4
02

Limitation under Section 90 of the Employment Act

Holding

All claims in respect of which no proceedings were instituted by 12th February 2017 are statute barred; only claims accruing after that date are enforceable

Reasoning

Section 90 is couched in mandatory, negative terms. Under fixed-term contracts, a distinct cause of action arose on completion of each contract. The last engagement concluded sometime in 2017 and the suit was filed on 12th February 2020. The trial Court's reliance on Article 159(2)(d) was misplaced because limitation implicates jurisdiction, which is dispositive and can be raised at any time.

p. 7
03

Burden of proof on quantum

Holding

Although the Respondent proved he served as a part-time lecturer and was owed some money, he failed to prove the quantum claimed or awarded

Reasoning

Under Sections 107, 108 and 109 of the Evidence Act the burden lay on the Respondent. His demand letter identified Kshs.1,261,516.00 as arrears without demonstrating the amount due per the appointment letters or when claims were lodged. He also adduced no evidence of when the Kshs.207,640.00 admittedly paid was paid or in respect of what claims.

p. 5
04

Interference with the trial Court's discretion

Holding

A case for interference was made out because the trial Court failed to consider that the bulk of the claim was statute barred and misapprehended the proration evidence

Reasoning

Applying the Mbogo v Shau principles, the trial Court failed to take account of considerations it should have taken into account: that claims dating 2015 and 2016 lacked particulars and were time barred, and it assumed all 20 course units had at least 16 fully-paying students contrary to the examination attendance sheets.

p. 7

Legal principles established

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  • A time barred claim implicates the Court's jurisdiction and cannot be cured by Article 159(2)(d) of the Constitution
  • An issue of jurisdiction may be raised at any time, including in submissions, and the court may raise it suo motu
  • In fixed-term employment each concluded contract gives rise to a distinct cause of action, and Section 90 of the Employment Act in mandatory terms bars claims not brought within three years

Court orders

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  1. 1.The Judgment of the trial Court is set aside in its entirety
  2. 2.In its place the parties shall tabulate the Claimant's entitlement for all the course units taught and examined in 2017, within 30 days and file the same for adoption by the Court
  3. 3.Parties shall bear their own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Evidence ActSections 107, 108 and 109
  • Limitation of Actions Act (Cap 22)Section 41
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (12)

  • Seth Osundwa Cholwa V Kisii University
    [2021] eKLR
  • George Marara Ontumbi V Moi University
    ELRC No. 230 of 2017
  • National Bank of Kenya V Pipeplastic Samkolit (K) Ltd & Another
    [2001] eKLR
  • Kenya Ports Authority V Modern Holding (EA) Ltd
    (2017) eKLR
  • Charles M. Kiget V Majani Mingi Group of Companies Ltd
    (2019) eKLR
  • Selle & Another V Associated Motor Boat Co. Ltd. & Others
    (1968) EA 123
  • Owners of Motor Vessel "Lillian S" V Caltex Oil Kenya Ltd
    [1989] KLR 1
  • Pauline Wanjiru Thuo V David Mutegi Njuru
    CA No. 2778 of 1998
  • Attorney General & Another v Andrew Maina Githinji & Another
    [2016] eKLR
  • G4S Security Services (K) Ltd V Joseph Kamau & 486 Others
    [2018] eKLR
  • Mbogo V Shau & Another
    [1968] EA
  • United India Insurance Co. Ltd V East Africa Underwriters (Kenya) Ltd
    [1985] EA
On appeal from
Chief Magistrate's Court (ELRC), Kisumu
Kisumu CM ELRC No. 25 of 2020
Jurisdiction invoked
First appellate jurisdiction over the subordinate court in an employment dispute; appeal from Kisumu CM ELRC No. 25 of 2020

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, "Council, Kisii University & another v Ouma (Appeal E030 of 2023) [2024] KEELRC 2545 (KLR)", Case Analysis (2024). Appeal No E030 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2545/eng@2024-10-23

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