https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1613

Mbithi v Dedan Kimathi University of Technology (Appeal E040 of 2025) [2026] KEELRC 1613 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1613 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Appeal E040 of 2025 SC Rutto, J June 12, 2026 Between Benson Kilonzo Mbithi Appellant and Dedan Kimathi University Of Technology Respondent (Being an Appeal from the entire Judgment of Hon. M. Okuche (P.M) delivered on 24.6.2022 in the Principal Magistrates' Court in Nyeri Civil Suit No. 135 of 2020) Judgment 1.The Respondent herein, Dedan Kimathi University of Technology, instituted proceedings before the Chief Magistrate’s Court at Nyeri in CMELRC Cause No. 135 of 2020; Dedan Kimathi University of Technology v Benson Kilonzo Mbithi. 2.In its Plaint dated 4th February 2020, the Respondent averred that it was claiming the sum of Kshs. 1,089,924.00 from the Appellant, being the amount allegedly expended on his financial sponsorship at his own request during the period between 2018 and 2021. The Respondent further contended that the Appellant was under an obligation to serve a bonding period of three (3) years upon completion of his studies, which he allegedly failed to honour. To this end, the Respondent sought judgment for Kshs. 1,089,924.00 together with costs and interest. 3.In response, the Appellant denied the Respondent’s claim and disputed that he was sponsored by the Respondent during the period 2018 to 2021. He further contended that the suit was instituted prematurely, on the basis that the alleged bonding period had not yet lapsed. He also averred that the bond agreement was executed under duress, stating that it was signed on 26th April 2018, only a day before his graduation with a Master’s degree. He further argued that the bond agreement purportedly relied upon related to sponsorship for the 2014-2015 academic period and could not operate retrospectively. 4.The Appellant further contended that his Master’s programme at the Respondent institution was fully funded by the African Development Bank (AfDB) and not by the Respondent. 5.The Appellant further denied being in breach of any valid or binding agreement, and further argued that he continued working under unfavourable terms contrary to his rights under the Employment Act. Consequently, the Appellant urged the trial Court to dismiss the suit with costs. 6.The matter proceeded for hearing before the trial Court by way of oral testimony and documentary evidence, followed by written submissions. The Respondent called evidence through Dr. Paul Mbote Koigi, its Acting Registrar (Administration and Finance), while the Appellant testified in support of his case. 7.Upon evaluation of the evidence and submissions tendered by the parties, the learned Trial Magistrate entered judgment for the Respondent as prayed, having found that the Appellant was in breach of the terms of the bonding agreement between the parties. The Appeal 8.Being aggrieved by the said determination, the Appellant has lodged the present Appeal and advanced the following seven (7) grounds in support thereof:1.That the Learned Trial Magistrate erred in both law and fact by failing to address the issue of when the bond agreement was executed by the Appellant.2.That the Learned Trial Magistrate erred in both law and fact by failing to address the issue of the circumstances under which the bond agreement was executed.3.That the Learned Trial Magistrate erred in both law and fact by failing to consider the submissions by the Appellant.4.That the Learned Trial Magistrate erred in both law and fact by failing to note the disparity in the liquidated sum sought in both the Plaint and the demand letter.5.That the Learned Trial Magistrate erred in both law and fact by failing to recognize the period served by the Appellant during the time he was allegedly bonded by the Respondent.6.That the Learned Trial Magistrate erred in both law and fact by failing to consider the provisions of the law.7.That the Learned Trial Magistrate erred in both law and fact by failing to consider the contravention of the guidelines provided for training of public servants. 9.Consequently, the Appellant seeks the following orders from this Court:a.The Judgment dated and delivered on 24.6.2022 be set aside and/or quashed.b.This Honorable Court does reach its own finding and determination on the aforesaid application.c.The costs of this appeal and the application borne by the Respondent any event (sic).d.Any other or further relief the court deems fit to grant. The Submissions 10.The Appeal was canvassed by way of written submissions. On his part, the Appellant submitted that he commenced and successfully completed the Master’s programme without executing or assenting to any bonding agreement. He contended that the alleged bond was only introduced a few days prior to graduation, by which time he had already fully performed the obligations relating to his training. 11.It was the Appellant’s further submission that contractual obligations cannot be imposed retrospectively after performance has been rendered, unless supported by fresh consideration. He argued that in the present case, no fresh consideration was furnished to support the alleged agreement, rendering it unenforceable. In support of this position, he relied on the case of Kimani v Technobrain Kenya Ltd (Employment and Labour Relations Cause E47B of 2020) [2025] KEELRC 1173 (KLR) (24 April 2025). 12.The Appellant further submitted that the Respondent sponsored his studies, facilitated the programme, and failed to require execution of any bond prior to commencement thereof. He further contended that the Respondent allowed him to continue working throughout the study period without objection. According to him, this conduct amounted to a representation that no preconditioned bond was necessary before the training commenced, upon which he relied in undertaking and completing the programme. To this end, he argued that it would be inequitable to allow the Respondent to demand reimbursement on the basis of terms introduced after completion of the training, and that the Respondent ought not to benefit from its own administrative omission. 13.The Appellant further submitted that although the alleged bond required him to proceed on study leave, he nonetheless continued working for the University throughout the duration of his studies with the Respondent’s full knowledge and consent. He argued that the Respondent not only permitted this arrangement but also benefited from his continued services during the training period. It was his position that any deviation from the study leave requirement occurred with the Respondent’s knowledge and consent. 14.The Appellant maintained that no valid or enforceable bond existed at the commencement of the programme. It was his view that the purported agreement was legally defective for want of consideration and proper contractual formation. He posited that in the absence of a valid contractual obligation, there could be no breach capable of grounding a claim for refund. 15.On the other hand, the Respondent submitted that the Appellant did not at any time raise concerns regarding the bond agreement or the terms of his appointment letter. 16.Relying on the case of Bluebird Aviation Limited v Mathew Njae Kiarie & another (2018) eKLR, the Respondent argued that the Appellant was bound by the terms of the training bond executed between the parties, from the start vide the letter dated 4th June 2014. 17.The Respondent further submitted that the Appellant failed to serve the compulsory service period stipulated under clause 4.1 of the training bond and was therefore in clear breach of clause 5.1.3 of the same. In support of this position, reliance was placed on the case of Seven Seas Technology Ltd v Eric Chege (2019) eKLR. Analysis and Determination 18.Being a first appellate court, this Court is under a duty to reconsider, re-evaluate, and re-analyse the evidence on record together with the impugned judgment, and thereafter arrive at its own independent conclusion. In undertaking that exercise, the Court must, however, bear in mind that it neither saw nor heard the witnesses testify. This position was restated in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. 19.Bearing in mind its mandate as a first appellate Court, and having considered the grounds set out in the Memorandum of Appeal, the entire record of appeal, and the parties’ respective submissions, the Court has identified the following issues for determination:i.Whether there exists a valid and enforceable training bond between the parties;ii.If the answer to (i) is in the affirmative, whether the trial Court erred in finding that the Appellant breached the terms of the training bond;iii.Whether the award made by the trial Court is sustainable. Valid and enforceable training bond? 20.The Appellant has faulted the learned trial Magistrate for failing to address the issue of when the training bond was executed. 21.It is the Appellant’s contention that the bond was introduced only a few days before graduation, by which time he had already fully performed the obligations relating to his training. It is on this premise that the Appellant contends that no valid or enforceable bond existed at the commencement of the Master’s programme. 22.The record bears that the Appellant executed the training bond on 26th April 2018 and subsequently graduated with a Master’s degree on 27th April 2018. 23.The said training bond, which was produced before the trial Court, made reference to sponsorship granted to the Appellant to undertake a Master’s degree programme for a period of two (2) years commencing in the 2014/2015 academic year. 24.The prime question that arises is whether the validity of the bond is affected by the fact that the Appellant executed it at the tail end of the Master’s programme. 25.In order to determine this issue, it is imperative to consider clause 4.2 of the training bond, which provides as follows:“That being an employee at the date of the sponsorship, the employee will, upon completion of the programme, continue to serve at the university as follows, depending on the training period.” Underlined for emphasis 26.It is also worth noting that the above clause is closely linked to the Appellant’s appointment letter dated 4th June 2014, which is couched as follows:“This is a training grade where you are expected to undertake further training and you are asked to register for a master's degree immediately. You will be bonded by the university for a period of three (3) years upon completion of a master's degree.” 27.A proper construction of clause 4.2 of the training bond, read together with the Appellant’s appointment letter, leads to the conclusion that the bond period was intended to commence upon completion of the Master’s programme, and not before or during the course of the programme. 28.It follows, therefore, that the fact that the Appellant executed the training bond at the tail end of the Master’s programme does not, of itself, render it inoperative, as the operative bond period had not yet commenced. 29.In any event, the Appellant remained bound by the terms of his letter of appointment, which provided that he would be bonded to serve the University for a period of three (3) years upon completion of his Master’s degree. This position further undermines the Appellant’s assertion that he had already discharged his bond obligations during the study period. 30.Further, the record bears that by a letter dated 10th May 2018, the Respondent’s Deputy Vice-Chancellor (AA) congratulated the Appellant upon successful completion of his Master’s programme and confirmed that his bond service was to commence with effect from 27th April 2018. This further confirms that the bonding period was intended to commence upon the Appellant’s completion of the Master’s programme. 31.I must also say that the Appellant’s allegation that he executed the training bond under duress is unsubstantiated, as he failed to plead or particularize the alleged coercion with the requisite specificity upon which the Court could make a finding. This omission is contrary to Order 2 Rule 10(1) of the Civil Procedure Rules, 2010, which provides that:“Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing—(a)particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies.” 32.In addressing the evidentiary threshold for proving allegations such as coercion or duress, the Court of Appeal in Patel & another v MJC & another (Suing as the guardians of PJP) (Civil Appeal 182 of 2019) [2022] KECA 364 (KLR) held as follows:“It should also be appreciated that apart from specifically pleading undue influence, coercion and fraud, the same has to specifically be proved by cogent evidence and not on the balance of probabilities as wrongly held by the trial court. Proof has to be higher than on the balance of probabilities but slightly lower than proof beyond reasonable doubt.” 33.Similarly, in Wenslaus Oduki Odinga v Kenyatta National Hospital Board [2013] eKLR, the Court held as follows:“Apart from the general claim of duress, the Claimant did not adduce any particulars. An employee alleging duress or inducement to sign a document in a non-custodial environment must provide details of such duress or inducement. It is not enough to say ‘I was forced or I was confused.’ The Claimant failed to provide any such details and his claim that he was forced to sign the admission is therefore rejected.” 34.In the present case, the Appellant did not particularise the nature of the alleged duress said to have been exerted upon him by the Respondent at the time of executing the training bond. 35.Further, had the Appellant indeed been subjected to duress in the execution of the training bond, it was reasonably expected that he would have taken steps to repudiate the same at the earliest opportunity. However, no such action was taken, nor was the bond ever disowned. Indeed, it was only after the commencement of the proceedings before the trial Court that the Appellant raised the allegation of duress. 36.It is trite that courts do not rewrite contracts for parties but are only called upon to interpret and give effect to the terms agreed upon by the parties. 37.To this end, the Court finds that the training bond executed between the Appellant and the Respondent is valid and enforceable, and the Appellant is accordingly bound by its terms. Breach of the training bond? 38.Pursuant to the terms of the training bond and the Appellant’s letter of appointment, the Appellant was obligated to serve the Respondent University for a period of three (3) years upon completion of his Master’s programme. 39.It is evident from the record that the Appellant did not serve the Respondent for the stipulated bond period, as he had secured alternative employment in South Sudan by the time of his graduation with the Master’s degree. 40.In the circumstances, it is clear that the Appellant was in breach of the terms of the training bond. 41.In terms of clause 5.1.3 of the training bond, in the event of default, the Appellant would be liable to refund an amount equivalent to the expenses waived by the University, including registration fees, examination fees, research costs, and any other costs incurred in support of the programme. 42.At the trial Court, the Respondent produced the Appellant’s student statement, which showed that the total training expenses covered under the AfDB scholarship in respect of the Appellant amounted to Kshs. 947,814.00. 43.Given that the Appellant was a beneficiary of the AfDB scholarship facilitated through the Respondent University, and having failed to serve the stipulated bond period upon completion of his studies, he became liable to refund the sums expended on his behalf under the scholarship arrangement. 44.Accordingly, this Court finds no basis to disturb the trial Court’s finding that the Appellant breached the terms of the training bond. The only variation is that the bond amount payable is reduced from Kshs. 1,089,924.00 to Kshs. 947,814.00, being the amount strictly proved to have been expended on behalf of the Appellant under the scholarship programme. Orders 45.In the final analysis, the Appeal substantially fails and succeeds only to the limited extent that the bond amount awarded to the Respondent is varied from Kshs. 1,089,924.00 to Kshs. 947,814.00. Interest shall accrue on the said sum from the date of the Judgment of the trial Court until payment in full. 46.Seeing that the Appeal has largely failed, the costs of this Appeal and those of the trial Court shall be borne by the Appellant, and shall be assessed on the basis of the final award. DATED, SIGNED AND DELIVERED AT NYERI THIS 12TH DAY OF JUNE 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Appellant No appearanceFor the Respondent Mr. WahomeCourt Assistant NdatiOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent direction of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court had been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.