Council, Kisii University & another v Ndege (Appeal E031 of 2023) [2024] KEELRC 2550 (KLR)
The bottom line
#Kenya's Employment Court ruled that part-time lecturers' claims expire three years after each contract ends, so a lecturer's older claims were too late to enforce.
What this practically means
#Executive summary
#Key legal issues
#Nature of the Respondent's employment
The Respondent was engaged under distinct semester-based fixed term contracts, not continuous employment
The appointment letters identified specific courses/units, School or Department, and the commencement and end of each semester, with payment dependent on level of training and number of students. The trial Court's suggestion of continuous service was therefore erroneous. Each contract lapsed by effluxion of time, so a claim accrued as soon as students were examined and results forwarded.
Whether the suit was time barred under Section 90 of the Employment Act
Claims accruing before 12th February 2017 were statute barred and unenforceable for want of jurisdiction; the trial Court erred in deferring the issue as raised too late and in invoking Article 159(2)(d)
Section 90 is mandatory and couched in the negative. A limitation defence implicates jurisdiction and may be raised at any time, even suo motu. Because the Respondent served under separate semester contracts, causes of action accrued at different times; only claims accruing after 12th February 2017 (three years before the suit filed on 12th February 2020) were enforceable.
Failure to follow the claim processing procedure and burden of proof
The Respondent failed to prove that he lodged claims as prescribed or the actual amounts owing; the trial Magistrate failed to evaluate the evidence
The Appellant's uncontroverted evidence was that claims required a completed claim form with the appointment letter, examination attendance sheets and processing form, with a stamped copy retained by the Lecturer. The Respondent produced no stamped claim form or evidence of follow-up, and his tabulation did not itemise amounts per course/unit despite variables of course level and student numbers.
Justification of the award of Kshs.783,314.00
The award could not stand because the trial Court did not interrogate individual claims, ignored time-barred portions, and did not account for prorating variables
Applying Mbogo v Shah, the Court found the trial Magistrate misdirected himself: he treated the engagement as continuous, failed to consider that amounts became due at different times, and awarded semester sub-totals that could not be reconciled with the documentary evidence given course level and student number variables.
Legal principles established
#- Under Section 90 of the Employment Act, no employment-based civil action may be instituted more than three years after the act or default complained of; the provision is mandatory and implicates jurisdiction.
- A time-bar question implicating jurisdiction may be raised at any time, by either party or suo motu by the Court.
- Part-time lecturers engaged per semester under fixed term contracts have a cause of action accruing at the end of each teaching and examination cycle.
- Article 159(2)(d) of the Constitution does not abolish procedural requirements such as statutory limitation.
Court orders
#- 1.The judgment of the trial Court dated 28th April, 2023 is set aside in its entirety
- 2.The parties are directed to compute the Respondent's entitlements for services rendered from 12th July, 2017 to October 2018 within 30 days for adoption by the Court
- 3.Parties shall bear their own costs
- On appeal from
- Chief Magistrate's Court at Kisumu (Employment and Labour Relations)
- CMELRC No. 24 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court in an employment dispute (Employment and Labour Relations Court); limitation under Section 90 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Council, Kisii University & another v Ndege (Appeal E031 of 2023) [2024] KEELRC 2550 (KLR)", Case Analysis (2024). Appeal No E031 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2550/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.