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ELRCPartially AllowedPetition (application dated 31st August 2015)· [2015] KEELRC 456 (KLR)

Mary Wanjiru Ndwiga & 913 Others v Principal Secretary, Ministry Of Health & another [2015] KEELRC 456 (KLR)

Employment and Labour Relations Court (Industrial Court)
23 September 2015
MMM. Mbaru
3,933 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that health interns count as employees and ordered the Ministry of Health to account for their unpaid salaries and budget.

What this practically means

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Executive summary

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This interlocutory ruling by the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) determines an application dated 31st August 2015 in a representative petition by 914 Clinical Officers Interns (Diploma level), led by Mary Wanjiru Ndwiga, against the Ministry of Health. The interns, posted to 76 internship hospitals in December 2014 by the 1st Respondent, sought interim orders compelling the 1st Respondent to deposit their unpaid January to August 2015 salaries and allowances (less taxes) plus compound interest in Court for release through their advocates as stakeholders, and monthly salaries for the balance of the internship period. The Respondents, through the Principal Secretary for Health Dr. Khadijah Kassachoon, opposed the application, asserting the internship was a training placement and not employment, that health had been devolved so the Ministry lacked capacity to pay, and that the Court lacked jurisdiction absent a contract of employment. The Court rejected the jurisdictional objection, holding that jurisdiction stems from Articles 41 and 162(2) and (3) of the Constitution and section 12 of the Employment and Labour Relations Court Act, and that the interns fall within the statutory definition of 'employee' as apprentices or indentured learners. The Court found a legitimate expectation and a public duty of accountability regarding the Ksh.2.4 Billion budgeted for the internship programme, and declined to demand pay slips as high-handed. Rather than grant the deposit orders outright, the Court directed the Respondents to render and file accounts of the petitioners' salaries and allowances based on the approved 2014/2015 budgets within seven days, by 1st October 2015, with parties to appear on 5th October 2015 for further directions. The application was thus allowed only in part, and no costs order was made.

Key legal issues

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01

Jurisdiction of the Court

Holding

The Court has jurisdiction; the Petitioners' posting and internship arising from the letters of posting dated 23rd December 2014 stem from an employment and labour relations relationship, and interim orders had already been issued on good grounds consistent with Giella v Cassman Brown

Reasoning

Jurisdiction derives from Articles 41, 162(2) and (3) of the Constitution and section 12 of the Employment and Labour Relations Court Act. The Court holds the petitioners are not students in the strict sense but interns posted for internship, captured by the definition of 'employee' including apprentices and indentured learners. Having established a prima facie case and sufficient reason under Giella v Cassman Brown, the interim orders issued on 4th September 2015 were within jurisdiction.

p. 5
02

Employment status of the Clinical Officer Interns (Diploma level)

Holding

The Petitioners are 'stricto sensu not students' but persons within the statutory definition of employee by virtue of their posting for internship under the Director of Medical Services

Reasoning

The letter of posting dated 23rd December 2014 directed hospitals to receive the interns and provide support to ensure training. The interns had completed college and council exams and were awaiting Council confirmation. The Employment Act's definition of 'employee' extends beyond wage-earners to apprentices and indentured learners, so the interns enjoy rights and benefits as they serve.

p. 5
03

Accountability for budgetary allocation and legitimate expectation

Holding

The Respondents carry a public duty to render an account of the Ksh.2.4 Billion allocated for the Doctors/Clinical Officers/nurses internship programme approved by Parliament

Reasoning

The Budget Statement delivered to the National Assembly on 12th June 2014 allocated Ksh.2.4 Billion for the internship programme under 'Investing in Quality and Accessible Health Care'. Accountability under Article 10 of the Constitution requires the 1st Respondent to cascade the approved allocation and account for it to the petitioners and the people of Kenya. Demanding pay slips from interns who were never paid was dismissed as high-handed bureaucracy.

p. 6

Legal principles established

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  • A Clinical Officer Intern posted by the Ministry for a compulsory internship falls within the definition of 'employee' under section 2 of the Employment Act, which includes apprentices and indentured learners
  • The ELRC has jurisdiction under Articles 41 and 162 of the Constitution and section 12 of the ELRC Act to grant interim relief, including any other appropriate relief, in employment and labour relations matters
  • Interns posted to public hospitals hold a legitimate expectation to enjoy facilities and resources set aside for their benefit, and the Respondents bear a public duty to render an account of such resources

Court orders

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  1. 1.The Respondents shall render an account with regard to the Petitioners' salary and allowances based on the Budgets made and approved by Parliament for the fiscal year 2014/2015 in terms of the orders made on 4th September 2015
  2. 2.Such account shall be rendered within 7 days
  3. 3.The Respondents shall file such accounts on or before the 1st day of October 2015
  4. 4.The Court shall proceed based on (a) and (b) above to direct as appropriate
  5. 5.Parties shall appear in Court on the 5th of October 2015 for such directions

Authorities

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Legislation

  • Constitution of KenyaArticle 41; Article 162(2) and (3); Article 10
  • Employment and Labour Relations Court Actsection 12, including section 12(3)(viii)
  • Employment Actsection 2 (definition of 'employee')
  • Employment and Labour Relations Court Rules – the Industrial Court (Procedure) Rules, 2010Rule 9
  • Clinical Officers (Training, Registration and Licencing) Actestablishment of the Clinical Officers' Council

Cases cited (4)

  • Giella Vs Cassman Brown & Company Limited
    [1973] EA 358
  • Mrao Ltd versus First American Bank of Kenya Ltd & 2 Others
    Civil Appeal No.39 of 2002
  • James Oduko versus Computer for School Kenya
    Cause No.1437 of 2011
  • Econet Wireless Kenya Limited versus The Minister for Information and Communication of Kenya & Another
    Misc. Appl. 1640 of 2003
Jurisdiction invoked
Articles 41 and 162(2) and (3) of the Constitution; section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Wanjiru Ndwiga & 913 Others v Principal Secretary, Ministry Of Health & another [2015] KEELRC 456 (KLR)", Case Analysis (2015). Petition (application dated 31st August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/456/eng@2015-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.