https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2126

Kisaka v University of Nairobi (Petition 7 of 2019) [2026] KEELRC 2126 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2126 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition 7 of 2019 JK Gakeri, J July 23, 2026 Between Erastus Sifunjo Kisaka Petitioner and University of Nairobi Respondent Ruling 1.Judgment in the instant suit was delivered on 25th July, 2023. The court ordered that the Petitioner be paid;i.Unpaid salary and commuter allowance from the date of suspension till its lifting.ii.Shortfall in salary and allowances from date of suspension till its lifting.iii.Costs of the suit.iv.Interest on (i) and (ii) from date of judgment till payment in full. 2.By letter dated 16th October 2025 the Petitioner’s counsel informed the Respondent’s counsel that they had filed a Notice of change of Advocates and attached an affidavit in support of the computation and sought concurrence of the respondent within 21 days. 3.By his Affidavit sworn on 15th October 2025, the Petitioner deponed that he had computed the amount due to him at Kshs.34,871,721.00. 4.The deponed attached the computation and copies of P9 forms for 2018 and 2019. A further computation on record has a figure of Kshs.36,850,712.00. 5.By a Replying Affidavit sworn by Mr. Fredrick Collins Omondi on 23rd June 2026, the affiant deponed that he was the Director of Legal and Corporate Board Affairs of the Respondent. 6.The affiant deponed that the Petitioner was suspended from 25th September 2018 and reinstated on 2nd May 2020, a duration of 17 months and 5 days and the amount payable to the petitioner was Kshs.2,457,496.00. A computation was attached. 7.The affiant further deponed that the petitioner’s computation was incorrect and was deliberately inflated to misdirect the court and annexutre ESK-3 had indicated a salary of Kshs.800,000.00 and later reduced to a basic salary of Kshs.220,551.00 on reinstatement which is impracticable as salary typically increased not decrease. 8.That the P9 forms attached to the Petitioner’s Affidavit showed that his basic salary was Kshs.140,683.00 in 2018 and that the only amount payable was the petitioner’s basic salary and allowances withheld owing to suspension. 9.When the matters came up for mention, counsel for the Respondent informed the court that there were two computations and prayed for directions on how to proceed. 10.Mr. Kurauka on the other hand indicated that the court could rule on the matter as a proposed meeting did not take place owing to the Respondents non-attendance.The court gave a ruling date. 11.Significantly, the court found that the Petitioner was promoted to Senior Lecturer effective 14th March 2018 and was thus a Senior Lecturer effective that date and remained a Senior Lecturer and his remuneration ought to have been that of a Senior Lecturer for the entire duration he was on suspension. 12.The singular issue for determination is which of the two computations, if any reflect the true or correct computation of the petitioner’s withheld dues. 13.While the Petitioner claims a figure of Kshs.34,571,721.00 the Respondents computation is Kshs.2,457,496.00. 14.The Respondent’s computation is grounded on the duration the petitioner was on suspension, 17 months and 5 days and the Tables from July 2018 to May 2020 juxtaposes what was payable, what paid and the difference which is the amount due as it was withheld. 15.The copy of the payslip for December 2018 reveals that the Petitioner’s basic salary was Kshs.70,341.50 and a housing allowance of Kshs.55,286.00, which reflected the half basic salary paid. The basic salary then was Kshs.140,683.00. 16.Everything else being equal, the Respondent’s computation is clear and comprehensible. This does not necessarily denote that it is the correct computation. 17.In his Supporting Affidavit sworn on 15th October 2025, the petitioner stated that he had attached the computation and P9 Forms. 18.Puzzling, the computation was prepared in a format which rendered it undecipherable owing to the squeezed space and figures. The computation is illegible to the court and of no evidential value. The Petitioner attached his P9 Forms for 2018 and 2019, identical to what the Respondent attached to its computations. It is unclear as to why the computations are poles apart. 19.However, to his Supplementary Affidavit, the Petitioner attached a copy of the CBA between the Inter-Public Universities Councils Consultative Forum (IPUCCF) of the Federation of Kenya Employers and The Universities Academic Staff Union (UASU) dated 23rd November 2021 for the period 2021 to 2025, as well as the Implementation notes for the UASU-IPUCCF Collective Bargaining Agreement (2017-2021). Whereas the CBA 2021-2025 fell outside the period under consideration, it is also notable that the former CBA, was not implemented until 2021 and the salaries paid to members staff were not those enumerated by the CBA, and cannot be factored in the computation. 20.Fortunately, the petitioner’s computation annexed to the Supplementary Affidavit sworn on 12th February 2026 is clearer. 21.Puzzlingly, the petitioner’s basic salary in July 2018 was indicated as Kshs.842,267.25, house allowance Kshs.58,972.00 and Transport Allowance Kshs.18,590.00, thus the unpaid amounts were as follows;a.2018(i)Salary Kshs.4,407,926.75(ii)House allowance Kshs.22,116.00b.2019(i)Salary Kshs.9,459,534.00(ii)House allowance Kshs.44,232.00c.2020(i)Salary Kshs.4,057,840.00(ii)House allowance Kshs.29,486.00 22.The Petitioner appears to have factored in the salary for subsequent years, not material for the instant suit. 23.It is unclear to the court how the figure of Kshs.842,262.00 as basic salary for 2018, Kshs.858,636.00 as basic salary for 2019 and Kshs.545,605.00 as basic salary for 2020 was arrived at. Even if the Petitioner factored in the CBA 2017 -2021 figures, the basic salary would not amount to half of the amount quoted in the assessment. 24.Strangely, according to the Petitioners computations, his basic salary fell from Kshs.815,665.00 to Kshs.206,563.00 from June 2020. 25.Clearly the Petitioner’s computation is are misleading and ignored the reality that the court awarded amounts withheld for the position of Senior Lecturer in situ as opposed to what was agreed upon under the CBA, for the simple reason that the CBA was implemented in 2021. 26.The court finds it illogical as to why the petitioner used inflated figures as his basic salary while aware that his colleagues who were senior lecturers, including those at the end of the salary band were earning far much less. 27.The foregoing comment is borne by the fact that in 2018 the basic salary of a Senior Lecturer at the university of Nairobi ranged from Kshs.112,038.0 to 159,720.00, a house allowance of Kshs.58,972.00 and a Transport Allowance of Kshs.18,590.00 where the member of staff had a Motor vehicle or Kshs.14,666.00 where the member of staff had no motor vehicle. 28.Thus, the highest earning Senior Lecturer had a gross salary of Kshs.237,282.00 before statutory deductions. 29.The court finds that the figures of Kshs.842,262.00, Kshs.858,636.00 and Kshs.875,665.00 used by the Petitioner as basic salary had no legal basis. 30.Based on the P9 forms for 2018 and 2019 filed by both parties, it is clear that the Petitioner’s basic salary in January to September 2018 was Kshs.140,683.00 per month and ought to have been more and from 14th March 2018 as it ought to have been that of a Senior Lecturer after he was promoted and the difference is incorporated in the Respondent’s computation. 31.According to the Petitioner, the Respondent was withholding and average of Ksh.1,992,700.00 per month which is not feasible. 32.The petitioner’s figure of the amount of basic salary and allowances withheld by the Respondent is to all intents and purposes hyperbolical and unrealistic as it was not grounded on ascertainable facts and it is declined in totality. 33.On the other hand, the Respondent’s computation is presented in a clear and patently understandable format, logical and reasonable. 34.According to the Respondent’s computation, the withheld salary amounted to Kshs.2,103,336.00, house allowance Kshs.71,722.00 and commuter allowance Kshs.282,438.00, total Kshs.2,457,496.00. 35.The court is satisfied that the Respondent’s computation of the Petitioner’s dues is in accord with the Judgment delivered on 25th July 2023 and is hereby adopted as part of the Judgment delivered on 25th July 2023. 36.Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 23RD JULY, 2026.DR. JACOB GAKERIJUDGEOrderIn 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 directions 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 has 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.DR. JACOB GAKERIJUDGE