Maurice Kodiwo Odhiambo v Great Lakes University of Kisumu [2019] KEELRC 843 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CASE NO. 341 OF 2016

(Before Hon. Justice Mathews N. Nduma)

MAURICE KODIWO ODHIAMBO................................................CLAIMANT

VERSUS

GREAT LAKES UNIVERSITY OF KISUMU..........................RESPONDENT

JUDGMENT

1. The suit is based on amended statement of claim filed on 29th August 2017 in which the claimant seeks the following reliefs:

(a) Arrear salary in the sum of Kshs. 518,400.

(b) Compensation of Kshs. 84,881 being subsistence expenditures and Kshs. 1,317,848 being interest from the loans.

(d) Interest and costs.

2. The respondent filed a reply to the claim on 20th January 2017 in which the employment of the claimant as a lecturer is admitted but the clams for non-payment and damages denied.

3. The suit proceeded exparte, in default of appearance by the respondent on 9th October 2018.

4. The testimony by CW1 under oath remains uncontroverted and the court has found the following matters to have been proved on a balance of probabilities:

5. The clamant was employed by the respondent on 28th May 2013 as part time Assistant Lecturer. That the hourly rates of payment are stipulated in the letter of appointment. That the claimant was expected to do a minimum of 45 contact hours. The appointment in terms of the letter was to automatically end on 31st December 2013. The claimant taught from 31st May 2013 up to 16th October 2013. The claimant taught 8 hours to Diploma students; 318 hours to under graduate students and was not paid at all by the respondent. The claimant has proved that he is owed by the respondent Kshs. 518,400 being arrear salary for services provided.

6. The letter of appointment produced by the claimant did not provide for reimbursement of subsistence expenditures in respect of food and travel as clamed or at all. This claim has no basis.

7. The claimant has also not proved any connection between interest on alleged loans and his employment with the respondent. This claim is misconceived and is dismissed.

8. The respondent breached the contract of employment between itself and the claimant dated 38th May 2013 forcing the claimant to repudiate the same in October 2013 before the expiry of the contract on 31st December 2013.

9. The court finds that the respondent was in material breach of the contract by reason of failure to pay any salary for work done to the claimant.

10. The court finds that the claimant is entitled to an award of general damages limited to the maximum amount the claimant would have earned based on a minimum of 45 contact hours up to and including 31st December 2013 in respect of Diploma and under graduate courses. However due to the unpredictability of the number of hours the claimant would have rendered service to the respondent up to 31st December 2013, the court awards the claimant general damages in the sum of Kshs. 100,000 given that the claimant had almost completed the contract term and had earned Kshs. 518,400 in the period of about five (5) months which translates to earnings of about Kshs. 100,000 per month.

11. Accordingly, judgment is entered in favour of the claimant as against the respondent as follows:

(a) Kshs. 518,400 being arrear salary for services rendered.

(b) Kshs. 100,000 being general damages for breach of contract.

(d) Costs of the suit.

Judgment Dated, Signed and delivered this 18th day of September, 2019

Mathews N. Nduma

Judge

Appearances

Mr. Achura for Claimant

Mr. Okello for Respondent

Chrispo – Court Clerk