https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1973

Thomas & 25 others v Kenyatta University (Petition 93 of 2018) [2026] KEELRC 1973 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1973 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition 93 of 2018 M Mbarũ, J July 9, 2026 Between Humphrey Nyaga Thomas & 25 others & 25 others Petitioner and Kenyatta University Respondent Ruling 1.The respondent, Kenyatta University, filed an application dated 30 January 2026 under the provisions of articles 50 and 159 of the Constitution, the Employment and Labour Relations Court Act, and the Rules thereto, seeking orders;1.Spent.2.Spent.3.Pending hearing and determination of this application, there be a stay of execution of the judgment delivered on 10 December 2021 as varied by the judgment of the Court of Appeal on 30 May 2025.4.The court to clarify and determine the correct quantum payable to the petitioners under the head of overtime upon hearing both parties.5.The court to clarify the interest, if any, payable on the awarded damages.6.The petitioners be directed to furnish the respondent with copies of:a.National Identity Cards,b.The highest academic certificates7.In the alternative, the court does clarify the nature of the duration of the term contracts envisaged under section 37 of the Employment Act, noting the Court of Appeal’s finding that the petitioners were non-core staff not entitled to permanent and pensionable status.8.Costs of this application be provided for. 2.The application is supported by Prof. Paul Okemo and is based on the petitioners' application seeking to cite the respondent for contempt of court. The respondents are ready and willing to comply with the judgment of the court as varied by the Court of Appeal. However, compliance is impeded by material ambiguities that require clarification and determination. 3.The judgment herein as varied required the respondent to compute overtime payable to the petitioners for a capped period of 3 years. The respondent computed the overtime at Ksh. 2,056,120 and communicated to the petitioners. However, the response is that the petitioners claim different amounts, the last being Ksh. 98 million in December 2025. 4.Prof. Okemo avers in his affidavit that in the absence of the court clarifying the correct quantum payable to the petitioners in overtime, the respondent risks exposure to contempt proceedings. The judgment contemplates that any dispute arising from the computation of overtime should be referred back to the court for determination. A unilateral computation is not allowed. 5.The court awarded damages for constitutional violations in the amount of Ksh. 280,320 per petitioner, which the respondent paid. However, the petitioners did not extract a decree or furnish the respondent with a computation of interest, yet allege non-compliance on account of interest. Thus, a clarification by the court would address such a matter. 6.Prof. Okemo avers that the petitioners have failed to supply the respondent with essential documents required for administrative compliance. These include the national identity card. Such information is necessary for payroll processing and determination of employment particulars. 7.The respondent has made an effort to resolve the outstanding issues without success. This has impeded compliance with the court judgment. Without the required clarification, the respondent is unable to comply and ensure this matter is closed. Hence, the judgment delivered on 30 May 2025 by the Court of Appeal quashed the findings of discrimination and held that the petitioners were non-core infrastructure staff and that the conversion of their status under section 37 of the Act resulted from their contracts rather than from permanent and pensionable employment. The judgment herein and that from the Court of Appeal have not clarified the duration of the term contracts arising from section 37 of the Act, rendering it impracticable for the respondent to issue letters of appointment without the requisite clarification of the court. 8.The orders sought will not cause any prejudice to the petitioners, and, in the interests of justice, they should be granted. 9.In reply, the petitioners filed the Replying Affidavit of Humphrey Nyaga Thomas, the 1st petitioner, who avers that the affidavit is filed on behalf of all the petitioners. He avers that the court delivered judgment on 10 December 2021, directing the respondent to submit contracts of employment to the petitioners with terms and conditions similar to those issued to other employees, without placing them at a disadvantage for not being unionised. This was to be done within 30 days of the judgment date. There is no compliance. 10.The respondent filed an appeal to the Court of Appeal, which delivered judgment on 30 May 2025, partially varying the judgment herein. 11.The petitioners have since sent to the respondent a computation of the unpaid awards. There is no compliance; hence, the respondent is before the court with unclean hands. 12.Mr. Nyaga avers that the respondent's failure to comply with the judgment of this court and the Court of Appeal led the petitioners to file an application dated 17 September 2025 seeking to cite the respondent for contempt of court through the office of the Vice Chancellor. There is a decree dated 10 December 2020, and the instant application is only intended to delay the petitioners' right to enjoy the fruits of their judgment. 13.Mr. Nyaga avers that the respondent paid the awarded damages of Ksh. 7,289,880 with accrued interest as calculated by them, leaving the rest of the decree unsatisfied. The petitioners have done the tabulations of the outstanding dues:a.Unpaid salaries from July 2018 to March 2020 for 10 petitioners following the memo dated 9 July 2018, Ksh. 4,976,820.b.Unpaid accrued benefits for 26 petitioners under Order (a) of the judgment 10 December 2020 to date (benefits which include basic salary, house allowance, commuting allowance, leave travelling allowance and annual leave) Ksh. 85,005,128.c.Unpaid overtime for the 1st petitioner for 3 years from 11 September 2015 to 10 September 2018, Ksh. 334,428.d.Unpaid overtime for 25 petitioners for 3 years from 11 September 2015 to 10 September 2018 Ksh. 7,377,600. 14.The petitioners thus aver that the respondent has not paid a sum of Ksh. 97,693,976 as directed by the court. 15.Regarding the interests at court rates, the petitioner avers that from the judgment date to date, the outstanding dues have accrued interest and the due is Ksh. 68,460,726.52, and cumulatively, what is unpaid is Ksh. 166,154,702.52, which the court should direct the respondent to pay. 16.Mr. Nyaga also avers that the court should direct the respondent to engage the petitioners in employment in compliance with the court decree and judgment delivered on 10 December 2021. 17.In a Supplementary Affidavit of Grishon Thuo, Advocate, and Second Supplementary Affidavit of Prof. Paul Gachanja, the respondents aver that it is a public university reliant on public funds and cannot spend outside legally authorised purposes. Hence, it requires strict scrutiny of all claims, including those of the petitioners. As a public institution, the respondent is required to maintain a reliable database of persons seeking employment. Hence, the request for the supply of personal documents held by the petitioners, who are reluctant to provide them.The monetary relief sought is based on the need to clarify the payable sum for overtime and the interest payable on the awarded damages only. 18.The court directed the respondent to calculate overtime and pay. The Court of Appeal directed that the same be paid for 3 years. The respondent has calculated the overtime at Ksh. 2,056,120. 19.However, the petitioners in reply claim overtime pay of Ksh. 7,377,600, which is unprocedural and contrary to the judgment. The petitioners may calculate the overtime pay due only if the respondent fails to do so. 20.Previously, the petitioners had calculated overtime pay for 10 years at Ksh. 6,362,960. This was varied by the Court of Appeal, which based it at 3 years. The respondent's calculation is more plausible and is based on available records at KSH. 2,056,120.On interest, based on the court rate, the sum of Ksh. 5,102,916. The respondent has paid. 21.The respondent also paid the damages awarded in the amount of Ksh. 280,380 per petitioner, in total. 7,289,880. 22.On 12 May 2023, the Court of Appeal stayed the judgment herein and, taking into account the judgment delivered on 30 May 2025 and the foregoing, the petitioners' contentions are not correct. 23.On the application, the respondent submitted that the court ordered them to calculate overtime pay owed to the petitioners, which has been done to Ksh. 2,056,120. The basis is the daily wage due to the petitioner at 2,200 hours, with a uniform rate of Ksh. 934 per day for all petitioners. The Court of Appeal set the calculation period at 3 years.The petitioners have instead gone ahead to calculate the volume for 10 at Ksh. 6,362,960. There is no justification. 24.On the due interest, the respondent has calculated the same on damages and overtime at the court rate and paid. The petitioners have not made a counter-calculation to show that the respondent's payment is incorrect. 25.Following the Judgment of the Court of Appeal, the petitioners are required to submit their personal records for employment purposes. The respondent thus requires a national identity card and the highest certificate of qualification for proper placement of the petitioners. They have declined to comply and instead moved the court with a contempt application. To ensure the respondent can comply, the necessary records should be submitted. 26.The claims now made by the petitioners are outside the scope of the judgment and are based on their prior claim for 10 years' payments. Parties are bound by their pleadings and cannot commence a new suit at this stage. 27.The respondent is thus seeking clarification of the term "employment". The Court of Appeal held that under section 37 of the Employment Act (the Act), it does not make employment permanent, but rather allows a court to convert a casual employment to a term contract, limited to the extent that the casual employee is to be paid at month end instead of each day and once converted, termination can be done through one month's notice. The court appreciated that the petitioners were employed on infrastructure projects and hence were not permanent. A clarification is therefore necessary. 28.The petitioners submitted that judgment was delivered herein on 10 December 2020, declaring them to be protected under section 37 of the Act. Various orders and declarations were issued. The respondent filed an appeal, and judgment was delivered on 30 May 2025, which was partially successful, with a variation quashing order (b) and a partially allowing order (d), for the judgment to apply to the petitioners only. The court allowed order (f), holding that dues payable to the petitioners would be for 3 years before the filing of the petition, with the parties bearing their own costs in the court and the appeal. 29.The petitioners submitted that the respondent has failed to comply, and they moved the court with a contempt application. To preempt it, the instant application was filed. 30.Overtime is due to the petitioners per order (f) of the judgment. The order was:(f)Overtime payments due and unpaid to date shall be tabulated by the respondent and paid to the petitioners within 30 days, and failure to do so shall result in the petitioners submitting their tabulation for confirmation by the court. 31.The Court of Appeals capped the number of years at 3. However, the condition to pay the same within 30 days was not varied. No tabulation was filed within 30 days as directed. Following the judgment on 30 May 2025, the 30-day period expired without any action, leading to the contempt of court application dated 17 September 2025. The petitioners have since completed the calculations and submitted them to the respondent for payment, but there has been no compliance. 32.For the period from 11 September 2015 to 10 September 2018, the 1st petitioner's overtime is different from that of the other petitioners. His dues are Ksh. 334,428. The applicable rate is Ksh. 116 and thus owed for 3 years at 2544 hours. 33.Additional memos issued by the respondent indicate additional overtime hours, bringing the total due to Ksh. 334,428 owed to the 1st petitioner. 34.The other petitioners' overtime pay is due in the amount of Ksh. 295,104 for each. Total due is Ksh. 7,377,600, with the cumulative overtime due to the petitioners at Ksh. 7,712,028.Due to the non-payment on time, interest is due. 35.Following judgment herein, the court awarded the petitioners the following:a.House allowance Ksh. 11,000 per month.b.Commuting allowance Ksh. 12,000 per month.c.Leave allowance Ksh. 9,700 per year.d.Annual leave allowance Ksh. 28,038 per year. 36.The respondent stopped paying salaries in March 2020. To date, no payment is in arrears of Ksh. 85,005,128. 37.About the submission of documents, Order (c) of the judgment directed the respondent to re-engage the petitioners on suitable terms and conditions, without putting them at a disadvantage for not being unionised. The petitioners have filed job cards; hence, they were working for the respondent based on these records. A re-engagement should be on their previous positions and departments. 38.The respondent has therefore failed to implement the judgments of the court and the Court of Appeal, and the petitioners should be heard on their application dated 17 September 2025. 39.Indeed, as submitted by the respondent, the instant application only seeks clarification of two issues:a.Overtime pay due, andb.The supply of national identity cards and the highest academic certificates. 40.The court takes it that all other matters in the judgment herein and in the judgment of the Court of Appeal are well addressed. 41.In the judgment herein, the court directed the respondent to pay overtime under (f) as follows:Overtime payments due and unpaid to date shall be tabulated by the respondent and paid to the petitioners within 30 days, and failure to do so shall result in the petitioners submitting their tabulations for confirmation by the court. 42.Upon appeal, the review was that:As to order (f), the dues payable shall be limited to 3 years before the petition was filed.Overtime is thus due save for 3 years before the petition was filed. 43.In the application, the respondent has only attached the two judgments from the court and the Court of Appeal. There is no tabulation of overtime and how each petitioner has been allocated the same from 11 September 2015 to 10 September 2018. Prof. Okemo only asserts in his Supporting Affidavit that what is due to the petitioners is Ksh. 2,056,120 without any form of analysis. The petitioners have indicated the basis of their claim for Ksh.6, 362,960 and given a basis in the Reply Affidavit of Mr. Nyaga. 44.Upon the petitioners’ reply, the respondent filed the Supplementary Affidavit of Prof. Gachanja, who has attached a tabulation for overtime worked in 2018, 2017, and 2016.There is no record from 11 September to December 2015. 45.For overtime due for 3 years, the respondent shall file the full record within 14 days; failure to do so, the tabulations by the petitioners at Ksh. 6,362,960 shall automatically apply thereof. 46.The respondent thus has until close of business on 24 July 2026 to submit the full record of overtime dues for the period from 11 September 2015 to 10 September 2018. 47.Where there is no compliance, the petitioner's rate of Ksh. 6,362,960 shall automatically apply. This payment being due for the last 8 years, costs and interest shall accrue thereof at court rates.These shall be tabulated as directed above. 48.As for the interests due, indeed, the respondent, despite being a public institution well-versed in payment procedures and staffed with various officers to manage payroll and tabulate employee dues, has not complied with the court judgment. The Court of Appeal on 30 May 2025 issued directions revising orders (b), (d) and (f), but the order to tabulate and pay within 30 days of the judgment was not disturbed.The respondent has since tabulated and paid other terminal dues, save for the clarity sought herein on the interests and overtime pay. 49.The clarification is that interest on the pending payments is due 30 days after the judgment date herein. 50.Regarding the personal documents the respondent is seeking from the petitioners, the foundation of the petition was the petitioners' employment on casual terms and conditions, which the court and the Court of Appeal has now addressed. To secure continued engagements, written terms and conditions are thus necessary. The request for submission of a National Identity Card is a reasonable requirement and necessary. This is necessary for the respondent to address the provisions of section 10(1), (2), and (3) of the Employment Act. 51.The petitioners' production of the highest qualification is a fair requirement but not mandatory. Where the respondent found it necessary to employ the petitioners before without securing the highest certificates as now required, the same cannot now be applied to them to deny them employment. 52.It is, however, important for the petitioners to market their skills with the respondent for proper placement. This shall suffice. 53.Accordingly, the application dated 30 January 2026 is thus addressed. The following orders were issued:a.The respondent shall calculate overtime pay for 3 years from 11 September 2015 to 10 September 2018. This shall be done within 14 days, closing on 24 July 2026.b.Where there is no compliance, the rate applied by the petitioners is Ksh. 6,362,960 shall apply immediately.c.Interests accrue 30 days from the date of the judgment herein.d.The petitioners shall produce their National Identity Cards with the respondent in terms of section 10(1), (2) and (3) of the Employment Act.e.For this application, each party shall bear its costs. DELIVERED IN OPEN COURT THIS 9TH DAY OF JULY 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Kemboi……………………………………………… and …………………………………..………