Musyoki v Lukenya University (Cause E002 of 2023) [2024] KEELRC 2833 (KLR)
The bottom line
#A part-time lecturer won Kshs. 679,200 in salary arrears but lost a bigger claim because he couldn't disprove the employer's figures or prove he was a consultant.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was entitled to salary arrears of Kshs. 943,760.00 for April 2019 to September 2022
- 2.Whether the claimant's payments should be subject to 5% withholding tax as a consultant or 30% PAYE as an employee
- 3.Whether the claimant was entitled to transport allowances and on what terms
- 4.Whether the claimant was entitled to a KRA withholding tax certificate, general damages, interest and costs
Key legal issues
#Applicable tax regime on part-time lecturer's earnings
PAYE applies, not 5% withholding tax, because the parties were in a contract of service
The court found that the claimant was employed under successive contracts of service as a part-time lecturer and not as an independent consultant providing professional services. The claimant did not establish the basis for applying the 5% withholding tax regime. Accordingly, the court held the respondent's statutory duty to deduct income tax by way of PAYE applied to the claimant's earnings.
Quantum of salary arrears and transport allowance
The amount owed was Kshs. 679,200.00 inclusive of taxes, not the Kshs. 943,760.00 claimed
The respondent's evidence and submissions established that pay was per credit hour (maximum 39 hours at Kshs. 1,200.00) plus Kshs. 4,000.00 per Full Time Program appearance, and that transport allowance was due only where physical attendance was required. The claimant did not rebut this, and failed to file submissions, so the court adopted the respondent's computation of Kshs. 679,200.00.
Legal principles established
#- A part-time lecturer engaged under contracts of service is subject to PAYE deductions, not withholding tax applicable to consultancies
- A party who fails to rebut the other side's pleaded terms and uncontroverted final submissions is bound by those submissions
Court orders
#- 1.The respondent to pay the claimant Kshs. 679,200.00 less due PAYE by 15.12.2024, failing which interest to run at Court rates from the date of filing the suit until full payment
- 2.The respondent to deliver to the claimant due documents showing the remission of the deducted PAYE
- 3.Each party to bear own costs of the suit
- 4.The Deputy Registrar to cause return of the court file to Machakos Sub-registry forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment and Labour Relations Court's statutory jurisdiction
Relief refused
#Claim for Kshs. 943,760.00 as pleaded
Court found the correct amount owed was Kshs. 679,200.00 inclusive of taxes and Kshs. 24,000.00 transport allowance per the respondent's submissions, which the claimant did not rebut
Declaration that the claimant's fees be subjected to 5% withholding tax instead of PAYE
Parties were in a contract of service, not a consultancy, so PAYE was applicable
Valid KRA withholding tax certificate for April 2019 to September 2022
Withholding tax regime held inapplicable; PAYE applies instead
General damages
Not granted in the final orders
Costs of the suit
Claimant failed to file and serve final submissions
Costs
Each party to bear own costs of the suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The respondent to pay the claimant Kshs. 679, 200.00 less due PAYE by 15.12.2024 and failing interest to run thereon at Court rates from the date of filing the suit until full payment.
The respondent to deliver to the claimant due documents showing the remission of the deducted PAYE.
Each party to bear own costs of the suit.
On account that the parties were in a contract of service and not a consultancy, it appears to the Court that PAYE and not withholding tax is deductible.
The claimant has not rebutted the respondent's case that the contracts provided for the specific terms and that Kshs. 4,000.00 applied only when the claimant was expected to physically attend at the University.
Issues in the judgment
#Judgment recites that the claimant taught up to September 2022 in the claim, but the respondent admitted employment up to September 2023; the discrepancy is not explained
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoki v Lukenya University (Cause E002 of 2023) [2024] KEELRC 2833 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2833/eng@2024-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.