Council, Kisii University & another v Ouma (Appeal E030 of 2023) [2024] KEELRC 2545 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Adequacy of the trial Court's evaluation of evidence
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
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.
Limitation under Section 90 of the Employment Act
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
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.
Burden of proof on quantum
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
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.
Interference with the trial Court's discretion
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
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.
Legal principles established
#- 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
#- 1.The Judgment of the trial Court is set aside in its entirety
- 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.Parties shall bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.