https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1986

Kusingura v University of Eastern Africa, Baraton & 3 others (Employment and Labour Relations Cause E051 of 2025) [2026] KEELRC 1986 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1986 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Employment and Labour Relations Cause E051 of 2025 MA Onyango, J July 2, 2026 Between Benon Ruhiriita Kusingura Claimant and University of Eastern Africa, Baraton 1st Respondent Baraton International School 2nd Respondent General Conference of the Seventh Day Adventist Church, East -Central Africa Division 3rd Respondent West Kenya Union Conference 4th Respondent Judgment 1.Vide an Amended Memorandum of Claim dated 11th September 2025, the Claimant instituted these proceedings against the Respondents alleging that during the subsistence of his employment the Respondents, in breach of his contract of employment underpaid his salary and subsequently computed his retirement benefits using erroneous salary figures, thereby occasioning him financial loss. 2.The Claimant avers that he entered into a written contract of employment dated 27th July 2006 with the 1st Respondent, pursuant to which he was employed as the Principal of the 2nd Respondent with effect from 1st January 2006. 3.According to the Claimant, at the time of his appointment, the 2nd Respondent was under the management and control of the 1st Respondent, which exercised authority over its human resource affairs, including recruitment, appointment of staff, determination of terms and conditions of service and payment of salaries. He further avers that throughout his employment he used a staff identification card identifying him as an employee of the 1st Respondent. 4.The Claimant further avers that although there were discussions in or about January 2010 regarding the delinking of the 2nd Respondent from the 1st Respondent, the proposed delinking was never implemented in relation to his employment. He therefore maintains that throughout his employment, up to his retirement, the 1st Respondent remained his employer and continued paying his salary. 5.It is the Claimant’s contention that under his employment contract, his monthly salary was pegged at 98% (67.979%) of Category B of the applicable wage factor under the Respondent's salary structure. He further states that prior to his appointment he had been promoted by the Ministry of Education to the position of Senior Grade I (SI) Teacher, thereby qualifying him for placement under the applicable wage factor for SI teachers. 6.The Claimant avers that he faithfully discharged his duties throughout his employment and that the Respondents initially honoured the contractual salary terms by paying him the correct salary from January 2006 until June 2012. 7.The Claimant states that from July 2012 until April 2023, the Respondents unlawfully and continuously underpaid his monthly salary by paying him less than the amount stipulated under his contract of employment and the applicable wage factor. He contends that the underpayments were made without any lawful basis and in violation of sections 17 and 19 of the Employment Act. 8.It is the Claimant’s case that in November 2018, the 1st Respondent introduced a new employment contract containing a revised salary structure that substantially altered the terms of his original contract. He avers that he never accepted or executed the new contract, yet the Respondents proceeded to implement it without terminating the existing employment contract. 9.The Claimant further asserts that at all material times he remained an SI Teacher and his qualifications never diminished so as to justify the reduction in his salary. He contends that if the Respondents were experiencing financial difficulties, they ought to have lawfully terminated his employment rather than retain him in service while paying him below his contractual entitlement. 10.The Claimant contends that despite repeatedly raising complaints regarding the alleged salary underpayments through written correspondence, the Respondents failed, refused and/or neglected to address his grievances. He consequently claims salary underpayments for the period between July 2012 and April 2023 amounting to Kshs. 1,915,176. 11.The Claimant further avers that although the 2nd Respondent had allegedly been delinked from the 1st Respondent, his retirement was nevertheless processed under the retirement policy applicable to the Church. He maintains that under that policy, employees retire upon attaining the age of sixty-five years or after completing forty years of active service, whichever occurs first. 12.The Claimant states that having attained the mandatory retirement age, he applied for retirement with effect from 1st May 2023. He alleges that the retirement process was however, marred by several irregularities. In particular, he contends that he was initially retired without being issued with a valid retirement letter. That he was later issued with a backdated retirement letter containing erroneous salary figures which resulted in an incorrect computation of his retirement benefits. 13.According to the Claimant, following his complaints regarding the first retirement computation, the Human Resource Manager recommended that the retirement benefits be recalculated, leading to the issuance of a second retirement letter. He maintains that the revised computation continued to rely on incorrect salary figures and therefore still understated his retirement benefits. 14.The Claimant further avers that both retirement letters incorrectly designated him as a Primary Teacher I instead of an SI Teacher, contrary to his employment status throughout his service. Consequently, he contends that he continues to receive retirement benefits that are significantly below his lawful entitlement and that part of his retirement allowance remains unpaid. 15.The Claimant further alleges that his retirement did not pass through the University Council, unlike that of other employees, thereby denying him an opportunity to raise his grievances regarding the salary underpayments and computation of his retirement benefits. He also contends that upon retirement he was issued with a Service Record that did not accurately reflect the salary he had actually received as shown in his payslips. 16.In addition, the Claimant contends that despite further correspondence seeking correction of the alleged errors in the computation of his retirement benefits, the Respondents refused to recalculate and pay him his lawful retirement dues. He alleges that the Respondents subjected him to intimidation and threatened to evict him from the staff house despite failing to settle the amounts he claims are due to him and before formally clearing him from employment. 17.The Claimant particularized the alleged breaches of contract by the Respondent as:-i.Unlawfully underpaying the Claimant from July 2012 to April 2023 contrary to the salary payment terms stipulated in the initial Employment Agreement.ii.Failing, refusing and/or neglecting to address the Claimant's grievances concerning the salary underpayments.iii.Implementing a new Employment Agreement that contained a new salary structure and without the Claimant's acceptance.iv.Failing, refusing and/or neglecting to pay the Claimant's allowances, including but not limited to, leave allowance and utility allowance.v.Failing, refusing and/or neglecting to refund the 30% less of the monies deducted during the Coronavirus pandemic period. 18.According to the Claimant, the Respondents owe him terminal benefits which he tabulated to include, salary underpayments of Kshs.1,915,176, retirement benefit underpayments of Kshs. 363,970.68, unpaid retirement allowance of Kshs.152,622.26 and unpaid salary from May 2023 to August 2025 amounting to Kshs. 907,920. 19.The Claimant therefore seeks the following orders against the Respondent: -i.A declaration that the 1st Respondent is the lawful employer of the Claimant.ii.Payment of the sum of Kenya Shillings One Million, Nine Hundred and Fifteen Thousand, One Hundred and Seventy-Six (Kshs.1,915, 176/-) being the monthly salary underpayments for the period from July 2012 to April 2023.iii.Payment of the sum of Kenya Shillings Three Hundred and Sixty Three Thousand, Nine Hundred and Seventy and Sixty Eight Cents (Kshs.363,970.68/) being the total monthly retirement benefits underpayments for the period from May 2023 to the date of filing this suit.iv.Payment of the sum of Kenya Shillings One Hundred and Fifty Two Thousand, Six Hundred and Twenty Two and Twenty-Six Cents (Kshs.152,622.26) being the retirement allowance due to the Claimant as a lump sum payment.v.Payment of the sum of Kenya Shillings Nine Hundred and Seven Thousand, Nine Hundred and Twenty (Kshs, 907,920/-) being the unpaid monthly salary for the period from May 2023 to the date of filing this suit, on account of the Respondent's failure to officially clear the Claimant from the Institution despite his retirement.vi.Recalculation and payment of the Claimant’s retirement benefits using the correct figures.vii.General damages for breach of contract. 20.The Respondents filed a Reply to the Amended Memorandum of Claim dated 28th October 2025 in which they averred that the 3rd and 4th Respondents were improperly joined in these proceedings as they were not the Claimant's employers. They contended that the allegations levelled against the 3rd and 4th Respondents related solely to the processing of the Claimant's retirement benefits. It is the Respondents’ case that the computation of the Claimant's retirement benefits was undertaken by his employer, who subsequently forwarded the requisite documentation to the 3rd and 4th Respondents for administrative processing in accordance with the applicable procedures. 21.The Respondents further contend that the suit is statute-barred under section 90 of the Employment Act on the basis that it is founded on alleged underpayment of salary from July 2012 to April 2023, which constitute a continuing injury that ceased upon the Claimant’s retirement in April 2023. They contend that under section 90 of the Employment Act, such a claim ought to have been filed within twelve months from the date the injury ceased. In this regard, the Respondents maintain that since the present suit was instituted on 27th August 2025, it was filed outside the prescribed limitation period and as such, the Court lacks jurisdiction to entertain it. 22.It is the Respondents case that throughout his employment the Claimant was remunerated in accordance with his contract of employment and the ECD Education Code Booklet. 23.The Respondents denied the allegations made by the Claimant that he had received a salary below his contractual entitlement and maintained that following his promotion by the Ministry of Education, the Claimant was placed in the Diploma Holder category at 97% of Category B, which was equivalent to the remuneration applicable to S1 teachers. This placement, according to the Respondents, was consistent with the ECD Education Code Booklet, the Teachers Service Commission Act and the Claimant's academic qualifications. 24.In response to the allegations regarding unlawful deductions from salary, the Respondents maintained that all deductions were authorised under the Claimant's contract of employment and the applicable ECD Working Policy, which the Claimant had accepted during his employment. The Respondents contended that the deductions comprised the Claimant's prescribed contributions towards outpatient and inpatient medical expenses, education assistance, as well as personal advances, electricity and water charges, all of which were properly debited to his account in accordance with the applicable policy. 25.The Respondents further averred that any revisions to the salary structure were implemented following consultation with employees and were communicated in writing. They asserted that the Claimant acknowledged receipt of the revised terms by signing the relevant letter on 27th November 2018, in compliance with section 10(5) of the Employment Act, 2007. 26.It is the Respondents' case that the Claimant was paid all sums lawfully due to him during his employment. They asserted that prior to the revision of the salary structure, the Claimant's salary stood at Kshs. 41,128, representing 97% of Category B and that following the review of the salary structure in 2012, the Claimant's revised salary would have been lower than his existing salary. The Respondents aver that consequently, his salary was retained at Kshs. 41,128 until the introduction of the BIS salary structure on 1st September 2018, after which he continued earning the same salary until his retirement hence the reason Kshs. 41,128 remained the Claimant's basic salary upon retirement. 27.With regard to the Claimant's retirement, the Respondents maintained that the Claimant was duly notified of his impending retirement by letters dated 2nd June 2022 and 19th September 2022, informing him that his retirement would take effect on 30th April 2023. They further contended that the retirement was processed through the University Council and that the Claimant was notified of the Council's decision by a letter dated 24th November 2022. 28.The Respondents further contended that when the Claimant raised concerns regarding the computation of his retirement benefits, the issues were reviewed, errors identified corrected and the revised computations communicated to him. They maintained that the Administrative Board recommended a revision of the Claimant's basic salary based on the correct figures reflected in his payslips, which recommendation was subsequently approved by the University Council and forwarded to the 3rd and 4th Respondents for implementation. The Respondents further maintained that the Claimant's remuneration was commensurate with his qualifications as a diploma holder and equivalent to that of an S1 teacher. They also asserted that the Claimant's retirement lump sum was duly processed, paid and credited to his account. 29.The Respondents stated that, as at the time of filing the Defence, the Claimant had received a total of Kshs. 492,340.64, comprising Kshs. 106,932.80 as retirement allowance lump sum and Kshs. 385,407.84 in monthly retirement benefits for the period between May 2023 and September 2025. They further stated that the Claimant had been refunded Kshs. 236,512.80, representing the reimbursement of the 30% deductions made during the COVID-19 period. 30.The Respondents denied the Claimant's assertion that he had not officially retired or that he remained entitled to salary from May 2023 to the date of filing suit. They maintained that the Claimant retired in April 2023 and had been receiving his monthly retirement benefits thereafter. 31.It is further the Respondents' case that the Claimant attained the mandatory retirement age of sixty-five (65) years on 30th April 2023 and had formally applied for retirement by completing and signing the Seventh-day Adventist Church, East-Central Africa Division Retirement Application Form dated 27th September 2022. 32.In this regard, the Respondents maintained that the Claimant's retirement was undertaken lawfully, procedurally and in accordance with his contract of employment and the applicable policies governing his employment. 33.The Respondents further asserted that upon retirement, the Claimant ceased to be an employee of the 1st Respondent and was paid all his terminal dues, including his retirement allowance and other retirement benefits. They therefore denied any obligation to continue paying the Claimant salary or other employment-related emoluments after the effective date of his retirement and maintained that the contract of employment lawfully came to an end upon retirement and that any procedural irregularities in the processing of the Claimant's retirement, if any, had been administratively rectified and did not revive or extend the employment relationship. 34.Consequently, the Respondents prayed for the Claimant's suit be dismissed with costs. The Evidence 35.The Claimant testified on 19th January 2026 as CW1. He adopted his witness statement recorded on 11th September 2025 and relied on the documents filed in support of his case as his evidence in chief. 36.In his testimony, the Claimant stated that he was employed by the 1st Respondent vide a contract executed in July 2006, which took effect on 1st January 2006 where he was appointed as the Principal of Baraton International School at a salary equivalent to 98% of Category B of the University's wage factor. He averred that the wage factor constituted the standard salary scale applicable across the University and, at the time of his appointment, it stood at Kshs. 40,000. 37.According to the Claimant, Category B comprised employees such as CPA I, CPA II and Senior Grade I (SI) teachers. He maintained that at the time of his appointment, his academic and professional qualification was at the level of Senior Grade I (SI), which he stated was equivalent to a diploma, and he remained in the same grade throughout his employment. 38.The Claimant testified that he was remunerated in accordance with the terms of his contract of employment from January 2006 until June 2012. He stated that he subsequently discovered discrepancies in his remuneration. According to the Claimant, in 2018 the Respondents sought to introduce a new employment contract, which employees were required to execute. Upon reviewing his employment records at that time, he observed that with effect from July 2012, his salary had been reflected as Kshs. 41,128 despite the applicable wage factor having been revised to Kshs. 58,000. He maintained that notwithstanding the revised wage factor, the Respondent continued to remunerate him at the rate of Kshs. 41,128. 39.The Claimant testified that upon discovering the discrepancy, he undertook a computation of his salary and concluded that he had been underpaid. He maintained that he did not execute the proposed new employment contract, contending that his original contract of employment remained valid and binding. He further stated that he lodged complaints with the Respondent regarding the alleged underpayment and computed the total salary arrears due to him at Kshs. 1,915,176. 40.The Claimant further testified that his retirement was governed by the ELB Retirement Policy, 2006, which provided that an employee would retire upon attaining the age of 65 years or upon completing 40 years of service in the Church, whichever occurred earlier. He stated that he attained the mandatory retirement age in May 2023 and was, consequently, due for retirement with effect from that date. 41.It was his evidence that his retirement benefits were calculated on the basis of his monthly salary as reflected in his Service Record for the year 2023, which was produced as Document No. 56 in the Claimant's bundle. The Claimant testified that the retirement benefits initially computed by the Respondent were based on incorrect salary figures. According to him, although his last salary was reflected as Kshs. 40,000, that figure was erroneous and had been wrongly tabulated. 42.The Claimant further testified that from September 2018, the Service Record reflected a reduction of his salary from Kshs. 48,000, being 80% of Category B, to Kshs. 36,000. He maintained that the reduction was irregular and that the Service Record required correction from that point onwards. It was his evidence that although the Respondent introduced a new employment contract in 2018, he never signed it. 43.During cross-examination, the Claimant referred to the Certificate of Promotion from P1 Teacher to Senior Grade I (SI), issued by the Ministry of Education in 1990 attached to his bundle of documents and maintained that the qualification required for promotion to Senior Grade I was that one be a P1 teacher, and that no additional qualification was necessary. 44.The Claimant testified that the position of Senior Grade I (SI) teacher was attained on merit. He stated that he was a Form Four leaver who underwent two years' teacher training and qualified as a P1 teacher before being promoted to Senior Grade I. He clarified that he did not possess a diploma at the time of his promotion to the SI grade. Referring to his employment contract (Exhibit 2), the Claimant testified that he was employed by the 1st Respondent with effect from 1st January 2006 as the Principal of the 2nd Respondent. He maintained that throughout his employment he served exclusively at the primary school and never taught at the University. 45.The Claimant further testified that his salary was determined by the applicable wage factor, which was initially set by the Respondent's Remuneration Committee and later by the Union. He stated that his remuneration was governed by the salary structure presented to him upon employment. According to the salary records produced, his basic salary was Kshs. 31,360 in 2006, increased to Kshs. 35,280 in 2008, Kshs. 39,200 in 2009, and Kshs. 41,128 by June 2012. He testified that the same salary of Kshs. 41,128 continued to be reflected in subsequent records, including those for August 2012 and August 2018. 46.The Claimant referred the Court to a letter dated 16th November 2018, which made reference to a meeting allegedly held on 17th November 2018. He testified that he did not recall attending the said meeting and observed that the date reflected in the letter was erroneous. He further stated that the letter purported to revise his basic salary to Kshs. 32,400, a figure that was similarly reflected in his September 2018 payslip. According to the Claimant, although the payslip included an item described as a "salary adjustment" under the allowances section, no explanation was ever provided to him regarding the basis or purpose of the adjustment. 47.The Claimant testified that he encountered no issues regarding his remuneration between January 2006 and June 2012. He stated that following discussions concerning the proposed delinking of Baraton International School from the University due to financial difficulties, he was no longer remunerated in accordance with the terms of his contract of employment. He maintained that the salary reflected in his Service Record differed from the salary payable under the applicable wage factor. The Claimant further testified that the salary underpayment schedule appearing at page 62 of his bundle of documents had been prepared at his request for payroll purposes, although he acknowledged that it had not been approved by the Respondent. 48.The Claimant confirmed that his payslips reflected deductions in addition to the statutory deductions and identified the payroll account maintained by the Respondent in his name, bearing Account Code ERRUHBEO1, which corresponded with the payroll records produced by the Respondents. 49.With respect to his retirement, the Claimant referred to the Employee Handbook, which required retirement upon attaining the age of 65 years or after 40 years of service. He testified that he attained the age of 65 years on 20th April 2023 and was due to retire with effect from 1st May 2023. He further testified that although employees were required to apply for retirement one year before attaining retirement age, he had not submitted his application by June 2022, prompting the Respondent to issue reminder letters. According to the Claimant, he eventually submitted his retirement application on 22nd September 2022, which was approved on 28th November 2022 and that he ceased active service on 30th April 2023. 50.The Claimant further testified that although he formally retired on 1st May 2023, he continued working during May and June 2023 and received salary for that period. He also testified that he continued occupying the staff house provided by the Respondents pending completion of the clearance process. He also testified that he enjoyed medical benefits under the Respondent's policy and maintained that both education and medical benefits were contractual entitlements under the applicable policy rather than discretionary assistance. 51.On re-examination, the Claimant reiterated that he was employed as an SI teacher and that his employment status never changed during the course of his service. He explained that promotion from P1 to SI was achieved through the prescribed teacher training programme, inspections and professional assessment by school inspectors. 52.He testified that although the wage factor continued to increase after July 2012, his salary remained frozen at Kshs. 41,128 instead of increasing to Kshs. 45,008 in January 2013 as required under the applicable salary structure. He attributed the discrepancy to a payroll allocation error, which he repeatedly brought to the Respondent's attention. 53.The Claimant further testified that he was never notified of any reduction or restructuring of his salary and was neither furnished with nor asked to sign any letter varying his contractual remuneration. He maintained that although a new salary structure was introduced in September 2018, he never accepted it. He further testified that after repeatedly raising the issue without success, he requested assistance from the payroll office in preparing a computation of his salary underpayments, which he subsequently relied upon in support of the present claim. 54.Lastly, the Claimant testified that the Respondent incorrectly based the computation of his retirement benefits on a salary of Kshs. 36,000 instead of his contractual salary, thereby applying 87.88% rather than the contractual 98% provided for in his employment agreement. He denied ever being informed that his salary had been lawfully reduced due to the Respondent's financial difficulties and maintained that his salary throughout the disputed period was lower than what he was contractually entitled to receive. 55.The Respondents called Dr. Jackson Oyaro Ong’eta (RW1), a lecturer of the 1st Respondent who, at the material time, served as the Deputy Vice-Chancellor in charge of Finance and Administration. RW1 adopted his witness statement recorded on 28th October 2025 as his evidence in chief and relied on the documents filed by the Respondents in support of their case. RW1 testified that although the Claimant performed his duties for the 2nd Respondent, his employer throughout the duration of his employment was the 1st Respondent. 56.It was the evidence of RW1's that employee salaries were determined using a wage factor system and that the applicable wage factor was determined by the University Management and approved by the University Council, taking into account academic qualifications of employees, experience and years of service. 57.RW1 testified that the Claimant was a diploma holder and therefore fell within Grade B. He maintained that the Claimant's salary was correctly computed using the applicable wage factor and denied that the Claimant had been underpaid. He further testified that the Claimant earned Kshs. 41,128 in June 2012 and that the same salary continued to be paid from August 2012 until the introduction of the revised salary structure in 2018. 58.RW1 further testified that in 2018 the University undertook a restructuring exercise and introduced a new salary structure for employees of the primary school and that according to the new structure, the Claimant's basic salary would have reduced to Kshs. 36,040, which was below the salary he was already earning. Consequently, the University decided to freeze his salary at Kshs. 41,128 so as not to reduce his earnings or contravene labour laws. 59.RW1 explained that following implementation of the new salary structure, the Claimant's basic salary was reflected as Kshs. 32,400 while the difference was paid as a salary adjustment allowance. He referred to the Claimant's payslip for May 2019, which reflected a basic salary of Kshs. 32,400 together with a salary adjustment of Kshs. 9,103, resulting in a gross salary of Kshs. 42,028. He maintained that the salary adjustment was introduced solely to ensure that the Claimant did not suffer any reduction in his overall remuneration. 60.RW1 testified that meetings were held between 17th and 21st September 2018 to inform employees of the restructuring and the implementation of the new salary structure. According to him, all affected employees, including the Claimant, were issued with letters communicating the changes. Although the letter produced in Court was unsigned, RW1 maintained that it had been issued to the Claimant. 61.With regard to deductions from the Claimant’s salary, RW1 testified that these comprised statutory deductions as well as deductions authorised under the University's employment policies, including KCB loan repayments, tithe, housing charges, medical contributions and education contributions. He explained that the University subsidised employees' medical and education expenses, meeting 90% of inpatient medical costs, 75% of outpatient expenses and 70% of boarding school fees for employees' children, with employees contributing the balance. 62.RW1 further testified that during the COVID-19 pandemic the University temporarily deducted 30% of employees' salaries owing to financial constraints but subsequently refunded the deductions in full. He referred to the Claimant’s account statements showing the refunds made in respect of the temporary COVID-19 deductions. 63.RW1 also referred to the utility refund statements and testified that the Claimant received utility reimbursements which formed part of his employment benefits. He testified that deductions for housing, tithe and loan repayments appeared consistently in the Claimant's payslips throughout his employment. 64.In relation to the Claimant's computation of alleged salary underpayments, RW1 testified that the tabulation contained in the Claimant's bundle was neither prepared nor approved by the Respondents as it did not bear the signature of either the Human Resource Manager or the Accountant. He maintained that the document had been prepared by the Claimant himself and that the wage factor used in the computation was incorrect. 65.On retirement, RW1 testified that the University's retirement policy required employees to apply for retirement at least one year before attaining the retirement age of 65 years or completing 40 years of service. He stated that the Claimant delayed submitting his retirement application and was consequently issued with reminder letters before eventually applying for retirement in October 2022. 66.RW1 testified that the Claimant initially received retirement benefits calculated on an incorrect salary because the Human Resource Office omitted the salary adjustment when preparing the retirement computation. He averred that following the Claimant's complaint, the error was corrected and revised retirement benefits were issued. Consequently, the Claimant's lump sum increased from Kshs. 93,600 to Kshs. 106,192.80 while his monthly retirement benefit increased from Kshs. 12,480 to Kshs. 14,257. RW1 maintained that the Claimant received the revised retirement benefits in full and that there was no outstanding balance. 67.RW1 further testified that although the Claimant had retired, he continued occupying the Respondents' staff house without initiating the prescribed clearance process. According to him, the clearance process is commenced by the employee upon retirement and only thereafter does the employee vacate the staff house. He stated that the University had nevertheless allowed the Claimant to remain in occupation out of compassion despite continuing to incur utility expenses on the premises. 68.During cross-examination, RW1 confirmed that the Claimant's employer was the University of Eastern Africa, Baraton and that the Claimant was assigned to work at Baraton International School. He further confirmed that the Claimant possessed the qualifications required for appointment at the time of his employment in 2006 and that the Claimant's employment relationship was governed by a single contract dated 27th July 2006. 69.RW1 conceded that there was no subsequent employment agreement executed between the parties, save for the letter issued in November 2018 communicating the revised salary structure. He admitted that although the letter required the Claimant to signify his acceptance by signing and returning it, the Claimant never returned a signed copy. 70.RW1 further confirmed that the Claimant's academic qualifications did not diminish following the restructuring and maintained that although the Claimant's basic salary was reduced under the new salary structure, his overall remuneration was preserved through the salary adjustment allowance. He explained that the previous grading system comprising Grades A, B and C was expanded into Grades A to G and that the Claimant was thereafter placed in Grade F, which he maintained was equivalent to the former Grade B and not a lower grade. 71.During further cross-examination, RW1 acknowledged that the Claimant had originally been appointed as Principal in 2006. He testified that by 2016 the Claimant was serving as a teacher and by 2022 as a primary school teacher. Although he asserted that the Claimant had been removed from the position of Principal owing to performance issues, he conceded that no document had been produced before the Court showing that the Claimant had been formally demoted. 72.RW1 testified that the East Central Africa Division (ECD) and the West Kenya Union Conference (WKUC) were not the Claimant's employers but merely administered retirement matters on behalf of the Church. According to him, the University made recommendations regarding retirement benefits while the WKUC communicated those decisions to employees and the ECD administered the retirement scheme. He maintained that the University's role was limited to making recommendations and effecting payment of the approved retirement benefits. 73.RW1 further testified that the initial retirement computation had been based on an incorrect salary because the salary adjustment had inadvertently been omitted. He stated that after the Claimant complained, the Respondents reviewed the computation and corrected the error. He maintained that the correction would have been undertaken even in the absence of the Claimant's complaint. He denied that the Claimant had suffered any unfair underpayment of retirement benefits. 74.RW1 also testified that although the Claimant complained about reduction of his salary following the restructuring, the proposed delinking of the school was never implemented and the University continued paying his salary throughout his employment. He denied that there had been any irregularity in the computation of the Claimant's salary or retirement benefits. 75.On re-examination, RW1 reiterated that the University's salary scales were determined by employees' academic qualifications, experience, the applicable wage factor and the percentage assigned to individual employees. He confirmed that the salary structure changed in 2018 owing to financial challenges affecting both the University and the primary school and maintained that employees, including the Claimant, were informed of those changes during meetings held before implementation. 76.The Respondent’s witness maintained that the salary adjustment ensured that the Claimant never earned less than he had previously been earning and denied that the Claimant had been underpaid at any time during his employment. He reiterated that the only error identified related to the initial computation of retirement benefits, which was corrected and the revised benefits paid in full. He further testified that the Claimant remained in occupation of the University's staff house pending completion of the clearance process and maintained that the Respondents owed the Claimant no further sums. 77.At the close of the Respondent’s case, parties were directed to file written submissions. The Claimant’s submissions are dated 5th May 2026 while the Respondents submissions are dated 7th May 2026. 78.By and large, the submissions reiterated the positions taken by the respective parties, and I need not repeat them. Determination 79.Upon considering the pleadings herein, the evidence of the respective parties as well as the submissions, I find that the issues that fall for this court’s determination are: -i.Whether the Claimant's claims are statute-barred under section 90 of the Employment Act,ii.Whether the Respondents unlawfully underpaid the Claimant's salary and unlawfully varied the terms of his contract of employment,iii.Whether the Claimant's retirement benefits were computed in accordance with the Respondents' policies, the contract of employment and the applicable law,iv.Whether the Claimant is entitled to the reliefs sought in the Amended Memorandum of Claim. Whether the Claimant's claims are statute-barred under section 90 of the Employment Act 80.The Respondents contended that the Claimant's claim for salary underpayments is statute-barred under section 89 (formerly section 90) of the Employment Act on the ground that the alleged underpayments constituted a continuing injury which ceased upon the Claimant's retirement on 30th April 2023. They asserted that the present suit, having been instituted more than twelve months thereafter, is incompetent. 81.The Court has considered that objection. While it is true that claims founded purely on recurring salary underpayments ordinarily constitute continuing injuries within the meaning of section 89 of the Employment Act, the present claim cannot be viewed in isolation. The Claimant's complaint is not confined to recovery of salary arrears. His case is that the Respondents persistently underpaid his salary throughout the latter part of his employment and thereafter utilised the same understated salary in computing his retirement benefits and retirement allowance. 82.Retirement benefits are computed on the basis of an employee's salary at the time of retirement. Where it is alleged that the salary forming the basis of that computation was itself contractually incorrect, the claim relating to salary underpayment is inextricably linked to the computation of retirement benefits. The cause of action therefore extends beyond the monthly salary payments and merges with the employee's retirement entitlements. 83.In the circumstances of this case, the Court is satisfied that the Claimant's complaint of salary underpayments cannot be severed from his complaint on the computation of his retirement benefits. To determine whether the retirement benefits were correctly computed, the Court must first determine whether the salary upon which those benefits were calculated accorded with the contract of employment. 84.In the instant case however, even if the underpayments were to be looked at in isolation and taken to be statute barred, the fact that the Respondent admitted that it had underpaid the Claimant by letter dated 30th November, 2024 and made adjustments as reflected at page 70 and 71 of the Claimant’s bundle would revive the claim. 85.Accordingly, I find that the Respondents' objection founded on section 89 of the Employment Act is not merited. The Court therefore proceeds to determine the merits of the Claimant's claims. Whether the Respondents unlawfully underpaid the Claimant's salary and unlawfully varied the terms of his contract of employment 86.It is common ground that the Claimant was employed by the 1st Respondent under a written contract dated 27th July 2006 with effect from 1st January 2006 as Principal of Baraton International School. It is equally not disputed that his remuneration was linked to the Respondents' wage factor and salary structure applicable to employees at the material time. 87.The gravamen of the Claimant's complaint is that whereas the applicable wage factor continued to increase after July 2012, his salary remained stagnant at Kshs. 41,128 until the year 2018, and thereafter the Respondents introduced a new salary structure which substantially altered his remuneration without his consent. He contended that as a consequence he suffered salary underpayments amounting to Kshs. 1,915,176. 88.The Claimant contended, both in his pleadings and oral testimony, that the Respondents unlawfully underpaid his salary throughout his employment and, in the process, unilaterally varied the terms of his contract of employment. He maintained that the Respondents failed to remunerate him in accordance with the applicable salary structure, policies governing his employment and the terms of his contract, thereby occasioning him substantial financial loss. 89.In response, the Respondents denied the allegations of underpayment and unlawful variation of the Claimant's terms of employment. They maintained that the Claimant's remuneration was at all material times determined and reviewed in accordance with the applicable human resource policies, salary structures, circulars and resolutions governing the Respondents' employees. They further contended that any changes to the Claimant's remuneration were lawful, justified and consistent with the prevailing policy framework and contractual terms. Their position was that following a restructuring of the salary structure in 2018, the Claimant's revised basic salary would ordinarily have been lower than what he was already earning. Consequently, rather than reduce his earnings, they retained his salary at Kshs. 41,128 and later introduced a salary adjustment allowance to preserve his overall remuneration. According to the Respondents, the Claimant did not suffer any financial loss. 90.From the evidence on record, it is apparent that there were indeed changes to the Respondents' salary structure. RW1 testified that those changes were necessitated by both the review of the wage factor and the financial challenges facing both the University and Baraton International School. There was also a review of the wage factors with a new grading and salary structure. RW1 further testified that employees were informed of the restructuring during meetings held in September 2018 and that letters communicating the revised terms were subsequently issued. 91.The letters at pages 13, 19, 26 of the Respondent’s bundle are further indicators of changes in salary and wage structure of the Claimant. 92.RW1 admitted that although the Claimant was issued with a letter dated 16th November, 2018, communicating the revised salary structure, the letter expressly required the Claimant to signify his acceptance by signing and returning it. He conceded that the Claimant never executed or returned the letter. The Respondents nevertheless proceeded to implement the revised salary structure notwithstanding the Claimant's failure to accept it. That admission is, in the Court's view, a clear acknowledgement that the revised terms never formed part of the contractual agreement between the parties. 93.Section 10(5) of the Employment Act imposes a statutory obligation upon an employer who intends to vary any term of contract contained in the written particulars of employment to consult the employee and revise the contract accordingly. The provision is intended to ensure that changes to fundamental terms of employment are not imposed unilaterally. 94.The Claimant’s employment contract at page 42 of the Claimant’s bundle of documents expressly provided that his remuneration was pegged at a salary 98% (67-97%) of category B of the wage factor. 95.It is not disputed that the Respondents' wage factor underwent periodic reviews after July 2012 but despite those reviews, the Claimant's salary remained stagnant at Kshs. 41,128 for a considerable period. The Respondents in justifying the stagnation of the Claimant's salary averred that the restructuring undertaken in 2018 would have resulted in a lower salary and that they therefore retained his salary at Kshs. 41,128 while introducing a salary adjustment allowance. 96.While the Court appreciates the Respondents' financial constraints and the rationale behind the restructuring, financial difficulties alone cannot justify the unilateral variation of contractual terms. Parties are bound by the contracts they voluntarily enter into and an employer cannot relieve itself of contractual obligations by imposing revised terms without the employee's consent. 97.Having examined the documentary evidence, including the employment contract and the wage factor schedules, I am satisfied that the Claimant has demonstrated that from July 2012 the Respondents failed to apply the contractual wage factor in determining his remuneration. Although the Respondents challenged the Claimant's computation, they did not place before the Court a computation demonstrating what the Claimant's contractual salary ought to have been under the original contract had the contractual formula continued to apply. 98.It was not clear from the evidence adduced by the Respondents what the Claimant’s salary scale and wage factor was for the period in question. The Claimant’s computation was thus not rebutted. 99.It is the obligation of an employer under section 10 and 74 of the Employment Act to keep all employment records including particulars of wages paid to an employee and to produce the same in proceedings relating to the same. An adverse inference is made where the employer fails to produce such records. 100.The Court therefore finds that the Claimant has proved, on a balance of probabilities, that the Respondents unlawfully departed from the agreed contractual remuneration formula, thereby underpaying his salary and subsequently his pension, from July 2012 until his retirement. The unilateral implementation of the revised remuneration structure was contrary to section 10(5) of the Employment Act and amounted to an unlawful variation of the Claimant's contract of employment. 101.Consequently, I find that the Claimant has established his claim for salary underpayments. I am satisfied that the computation produced by the Claimant, which remained substantially uncontroverted accurately reflects the underpayments arising from the Respondents' failure to implement the contractual wage factor. Accordingly, I award the Claimant the sum of Kshs. 1,915,176 being salary underpayments for the period between July 2012 and April 2023. Whether the Respondents correctly computed and paid the Claimant's retirement benefits and retirement allowance in accordance with the contract of employment, the applicable retirement policy and the law 102.The Claimant contended that the Respondents computed his retirement benefits and retirement allowance using an erroneous salary, thereby substantially reducing his retirement entitlement. He maintained that although the Respondents subsequently revised the computation following his complaint, the revised computation continued to rely on an incorrect basic salary and therefore failed to accord him the full benefits due under the applicable retirement policy. 103.The Respondents, on the other hand, maintained that the Claimant's pension was processed in accordance with the applicable retirement policy. They admitted that the initial computation omitted the salary adjustment component but contended that the error was subsequently rectified, the computation reviewed and approved by the University Council, and the revised retirement benefits paid in full. They maintained that no further sums are due to the Claimant. 104.There is no dispute that the Claimant attained the mandatory retirement age and retired with effect from 1st May 2023. Equally, it is common ground that his retirement benefits were calculated on the basis of his final salary as reflected in the Respondents' payroll records. 105.From the evidence before Court, RW1 admitted that the initial computation of the Claimant's retirement benefits was erroneous because the Human Resource Office omitted the salary adjustment when preparing the retirement schedule. He averred that following the Claimant’s complaint, the Respondents reviewed the computation and revised both the retirement allowance and the monthly retirement benefits. That admission confirms that the first computation did not accurately reflect the Claimant's remuneration. 106.Having so found, it follows that the salary figures maintained by the Respondents throughout that period could not accurately be the basis for computing the Claimant’s retirement benefits. 107.Although the Respondents corrected the omission of the salary adjustment component, they did not revisit the Claimant's basic salary itself that had been computed on the basis of a remuneration structure which this Court has found to have been unilaterally and therefore unlawfully imposed. Consequently, the revised computation merely corrected one aspect of the calculation while continuing to rely on an erroneous salary foundation. 108.I therefore find that the revised retirement benefits did not fully comply with the Claimant's contractual entitlement or the applicable retirement policy. The Claimant has established that his retirement benefits and retirement allowance ought to have been computed using the salary payable under his original contract of employment as determined in this judgment. 109.Accordingly, the Claimant is entitled to a recalculation of his retirement benefits and retirement allowance based on the salary lawfully payable under the contract of employment. The Respondents shall, within sixty (60) days of this judgment, recalculate the Claimant's retirement benefits using the correct contractual salary and pay the Claimant all consequential arrears together with any outstanding retirement allowance found to be due after the recalculation. Whether the Claimant is entitled to the reliefs sought? 110.In his Statement of Claim, the Claimant prayed for the following reliefs which I address as hereunder in separate heads.i.A declaration that the 1st Respondent is the lawful employer of the Claimant.On the prayer for a declaration that the 1st Respondent was the Claimant's lawful employer, the evidence on record overwhelmingly establishes that the Claimant was employed by the University of Eastern Africa, Baraton under the contract dated 27th July 2006. Both the Claimant and RW1 confirmed that Baraton International School was a department of the University and that the Claimant's contract of employment was executed by the University. Accordingly, this prayer succeeds.ii.Payment of the sum of Kenya Shillings One Million, Nine Hundred and Fifteen Thousand, One Hundred and Seventy-Six (Kshs. 1,915, 176) being the monthly salary underpayments for the period from July 2012 to April 2023.Having found that the Respondents unlawfully departed from the contractual remuneration formula and underpaid the Claimant's salary during the said period, this prayer is merited and is hereby allowed.iii.Payment of the sum of Kenya Shillings Three Hundred and Sixty-Three Thousand, Nine Hundred and Seventy and Sixty-Eight Cents (Kshs. 363,970.68) being the total monthly retirement benefits underpayments for the period from May 2023 to the date of filing this suitHaving found that the Respondents computed the Claimant's retirement benefits using an understated salary, those claims equally succeed. However, given that the exact amounts payable will depend on the recalculation directed by this Court, the Respondents shall recalculate the Claimant's retirement benefits and retirement allowance using the correct contractual salary and pay all consequential arrears within sixty (60) days of this judgment.iv.Payment of the sum of Kenya Shillings One Hundred and Fifty Two Thousand, Six Hundred and Twenty-Two and Twenty-Six Cents (Kshs. 152,622.26) being the retirement allowance due to the Claimant as a lump sum payment.Having found that the Respondents computed the Claimant's retirement benefits using an erroneous salary that was inconsistent with the Claimant's contractual remuneration, the Claimant is entitled to have his retirement benefits and retirement allowance recalculated on the basis of the correct contractual salary. Since the exact sums payable can only be ascertained upon such recalculation, it would be premature for the Court to award the specific monetary sums pleaded under prayers (iii) and (iv). Accordingly, the Respondents shall, within sixty (60) days of this judgment, recalculate the Claimant's retirement benefits and retirement allowance and pay the Claimant all consequential arrears found to be due.v.Payment of the sum of Kenya Shillings Nine Hundred and Seven Thousand, Nine Hundred and Twenty (Kshs, 907,920/-) being the unpaid monthly salary for the period from May 2023 to the date of filing this suit, on account of the Respondent's failure to officially clear the Claimant from the Institution despite his retirementI am unable to agree with the Claimant on this aspect. The evidence establishes that the Claimant attained the mandatory retirement age and retired with effect from 1st May 2023. Although the clearance process may have remained incomplete, retirement brought the contract of employment to an end. The Claimant therefore ceased to be entitled to salary after the effective date of his retirement. This prayer consequently fails.vi.Recalculation and payment of the Claimant’s retirement benefits using the correct figuresThis prayer succeeds to the extent already determined under issue (ii) and the Respondents shall comply with the order for recalculation within sixty (60) days of the date of this judgment.vii.General damages for breach of contractThe general principle of law is that damages for breach of contract are intended to place the innocent party in the position he would have been had the contract been performed and are ordinarily limited to the pecuniary loss proved. In the present case, the Court has awarded the Claimant the monetary loss arising from the salary underpayments together with the consequential adjustment of his retirement benefits. An award of general damages would therefore amount to double compensation for the same breach. Accordingly, the prayer for general damages is declined. 111.In the result, judgment is entered for the Claimant against the Respondents as follows: -a.A declaration is hereby issued that the 1st Respondent was the Claimant's lawful employer.b.The Claimant is awarded Kshs. 1,915,176 being salary underpayments for the period between July 2012 and April 2023.c.The Respondents shall within sixty (60) days from the date of this judgment, recalculate the Claimant's retirement benefits and retirement allowance using the salary lawfully payable under the contract of employment and pay the Claimant all consequential arrears.d.The claim for salary from May 2023 to the date of filing suit is dismissed.e.The prayer for general damages for breach of contract is declined.f.The sums awarded shall attract interest at court rates from the date of this judgment until paymentg.The Respondents shall pay the Claimant’s costs of this suit.h.Interest shall accrue on the decretal sum from date of judgement. 112.Orders accordingly. DATED, SIGNED AND DELIVERED ON THIS 2ND DAY OF JULY, 2026M. ONYANGOJUDGE