Musyoki v Lukenya University (Cause E002 of 2023) [2024] KEELRC 2833 (KLR) (15 November 2024) (Judgment)

Summary at a glance

Facts

The claimant, Athanas Muia Musyoki, was employed by Lukenya University as a part-time lecturer from April 2019 to September 2022. The claimant alleged non-payment of salary arrears and sought a declaration that his fees or salary should be subjected to 5% withholding tax and not 30% PAYE applicable to full-time employees. The respondent, Lukenya University, admitted employing the claimant but disputed the amount of salary arrears and the withholding tax rate.

Issues

• Non-payment of salary arrears
• Applicability of withholding tax vs PAYE
• Transport allowances

Reasoning

The court determined that the parties were in a contract of service, not a consultancy, and thus PAYE and not withholding tax is deductible. The claimant's claim for 5% withholding tax was not established.

Outcome

The respondent is ordered to pay the claimant Kshs. 679,200.00 less due PAYE by 15.12.2024 and deliver due documents showing the remission of deducted PAYE.

Orders

• 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.

Remedies

• Remission of deducted PAYE by the respondent to the claimant.