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ELRCDismissedNot stated in the judgment (Memorandum of Appeal dated 6th March 2023)· [2025] KEELRC 1576 (KLR)

Nairobi University v Opar (Employment and Labour Relations Appeal E082 of 2024) [2025] KEELRC 1576 (KLR)

High Court of Kenya
30 May 2025
4,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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The High Court upheld a Kshs.143,400 award to an adjunct lecturer because the employer kept no employment records and never presented its defence evidence.

What this practically means

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Executive summary

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This was a first appeal, transferred from the High Court to the court at Nakuru, against the judgment of Hon. Orenge K.I, Principal Magistrate, delivered on 10th February 2023, in which the Respondent (original Plaintiff) was awarded Kshs.143,400/= with costs and interest for services rendered as an adjunct lecturer to the Appellant (original Defendant). The appeal raised ten grounds, principally that the trial court denied the Appellant a fair hearing by refusing to allow its defence witnesses to testify, that the Respondent failed to prove the alleged employment contract and debt on a balance of probability, and that costs and interest were wrongly awarded. The appeal was disposed of by written submissions. The court, as the first appellate court, reassessed the evidence. It found that the Appellant filed its defence in 2008 and cross-examined the Respondent, but repeatedly delayed, lost its application to dismiss the suit for want of prosecution in 2016, was denied an adjournment in 2018, and finally closed its case on 8th August 2018 without calling any witnesses; its 2021 application to set aside those orders was dismissed in 2022 in light of the inordinate delay in a claim filed on 11th January 2008. Applying Article 159(2)(b) of the Constitution and Section 74 of the Employment Act, the court held the onus of keeping employment records lies on the employer, who cannot punish the employee for its own laxity. Scattered letters and the Respondent's uncontroverted evidence established an employment relationship and entitlement to payment. The appeal was dismissed and the trial court's judgment upheld, with costs of both the appeal and the trial court awarded to the Respondent.

Key legal issues

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01

Whether an employment relationship between the Appellant and the Respondent was proved

Holding

Yes. Scattered letters from the Appellant and the Respondent's evidence established that the Respondent rendered services as an adjunct lecturer; the employer's failure to keep or produce records under Section 74 of the Employment Act cannot be used against the employee.

Reasoning

The court found letters dated 27th March 2006 and 3rd March 2006 evidencing a relationship, and noted the employer handled the employee casually. Section 74 of the Employment Act places the onus of keeping employment records on the employer. Since the Appellant either failed to keep records or chose not to produce them, it could not rely on its own laxity. The court was satisfied from both documents and the employee's testimony that services were rendered and entitlements must be made good.

p. 7
02

Whether the Appellant was denied a fair hearing

Holding

No. The Appellant had ample opportunity to defend the suit, repeatedly absented itself, and finally closed its case on 8th August 2018 without calling witnesses; the trial court's finding that the defence evidence was uncontroverted was correct.

Reasoning

The record showed the Appellant filed its defence in 2008, cross-examined the Respondent, but failed to present its defence despite adjournments and a dismissal application in 2015. On 8th August 2018 its counsel closed the defence case without calling witnesses. An application to set aside those orders, filed in 2021, was dismissed on 9th September 2022 in light of the inordinate delay. The court agreed with the trial court that the defence evidence was uncontroverted.

p. 7
03

Whether the burden of proof was wrongly shifted to the Appellant

Holding

No. The Respondent discharged his burden of proving he was owed money for services rendered; the burden did not shift because the claim was not effectively challenged.

Reasoning

Relying on the principle that he who alleges must prove, the court found sufficient evidence that the Respondent established his employment with the Appellant, which was not challenged. Although absence of rebuttal does not automatically compel judgment, in this case the Respondent proved he was owed money as an adjunct lecturer. The claim for Kshs.143,400/= with costs and interest was therefore properly decreed by the trial court.

p. 7

Legal principles established

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  • A first appellate court must reassess, re-evaluate and re-analyse the evidence and reach its own conclusions, making due allowance for its lack of advantage in seeing or hearing the witnesses.
  • Under Section 74 of the Employment Act the burden of keeping employment records lies on the employer, and the employer cannot use its own laxity to punish the employee for lack of documents.
  • A party is bound by its pleadings; failure to call evidence means there is no evidence on record in support of that party's case.
  • Justice shall not be delayed; a party who repeatedly seeks adjournments and finally closes its case without calling witnesses cannot later claim its evidence was uncontroverted to its prejudice.

Court orders

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  1. 1.The appeal is dismissed and the trial court's judgment is upheld
  2. 2.The Respondent shall have the costs of the appeal and the costs of the trial court
On appeal from
Principal Magistrate's Court
Not stated
Jurisdiction invoked
First appellate jurisdiction transferred from the High Court (appellate review of the Principal Magistrate's judgment); appeal disposed of by written submissions

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, "Nairobi University v Opar (Employment and Labour Relations Appeal E082 of 2024) [2025] KEELRC 1576 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 6th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1576/eng@2025-05-30

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