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ELRCPartially AllowedCause No 975 of 2012· [2015] KEELRC 484 (KLR)

John Kamau Mburu v Program for Appropriate Technology In Health (Path) & another [2015] KEELRC 484 (KLR)

Employment and Labour Relations Court of Kenya
30 September 2015
3,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that working closely with an organisation doesn't make it your employer, and that forged employment documents destroy most claims.

What this practically means

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Executive summary

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The claimant, John Kamau Mburu, sued PATH (1st respondent) and SWAK (2nd respondent) arising from his engagement under the USAID-funded APHIA II project, claiming unpaid consultancy fees, allowances, gratuity, leave, damages for breach of contract, unfair termination, defamation and related relief. The Court found no employment relationship between the claimant and PATH: although PATH participated in his recruitment and reimbursed project costs including staff expenses under a sub-agreement, this was the ordinary NGO consortium model in which the lead and implementing partners retain autonomy; a close work relationship is not an employment relationship. The claim against PATH was dismissed entirely. The Court held it lacked jurisdiction over claims arising from the consultancy agreement, since ELRC jurisdiction presupposes an employment relationship as defined in law. On authenticity, a Forensic Document Examiner found the claimant's employment contract of 2nd May 2009 and letters of 28th August and 24th September 2009 bore signatures not made by the late Prof. Elizabeth Ngugi; the unchallenged report was adopted and the documents rejected, collapsing the unfair termination and defamation claims, the alleged defamatory termination letter not having been admitted in evidence. The genuine contract dated 3rd November 2008 ran its full term to 30th September 2009 and was simply not renewed, so no unfair termination lay. The Court awarded the claimant, against SWAK only, Kshs.163,620.00 for gratuity at 15% of basic salary, prorata leave pay and 7 days' untaken paternity leave, with interest at court rates, a certificate of service, and each party to bear their own costs.

Key legal issues

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01

Existence of an employment relationship with the 1st Respondent

Holding

No employment relationship existed between the Claimant and PATH despite its role in recruitment and funding

Reasoning

The Court distinguished a work relationship from an employment relationship. In the NGO donor consortium model, a lead partner may fund project costs including staff expenses and assist in recruitment while the implementing partner remains the employer. The organisations maintain autonomy and carry their respective internal responsibilities. The Claimant, recruited as an employee of the 2nd Respondent, remained such.

p. 5
02

Jurisdiction over the consultancy agreement

Holding

The Court has no jurisdiction over claims arising from a consultancy agreement

Reasoning

Jurisdiction is anchored in Article 162(2)(a) of the Constitution and Section 12(1)(a) of the ELRC Act, which is premised on an employment relationship as defined in law. A consultancy agreement does not create such a relationship, so claims thereunder fail for want of jurisdiction.

p. 5
03

Authenticity of the Claimant's documents

Holding

The employment contract dated 2nd May 2009 and the letters of 28th August 2009 and 24th September 2009 were forgeries

Reasoning

The documents were referred to a Forensic Document Examiner whose report found the signatures were not made by the same author as the specimen signatures of Prof. Ngugi. The report and the examiner's qualifications were unchallenged, and the Court, applying the balance of probability standard, adopted the report and rejected the documents.

p. 6
04

Unfair termination

Holding

No unfair termination; the Claimant served his full annual contract which was not renewed

Reasoning

The genuine employment contract dated 3rd November 2008 ran to 30th September 2009 and a letter of 1st October 2009 indicated non-renewal. Since the contract ran its full course, no claim for unfair termination, notice pay or breach of contract damages lay.

p. 7
05

Entitlement to gratuity, annual leave and paternity leave

Holding

Gratuity at 15% of basic salary, prorata leave pay and 7 days' paternity leave awarded against the 2nd Respondent

Reasoning

Under the genuine contract, the Claimant was entitled to gratuity at 15% of basic salary with no evidence of settlement. He testified he took no annual leave and the Respondent produced no leave records. Seven days' paternity leave was admitted as untaken. The claims were quantified on a monthly salary of Kshs.64,800.

p. 7

Legal principles established

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  • Jurisdiction of the Employment and Labour Relations Court in employment matters is premised on the existence of an employment relationship as defined in law, and does not extend to consultancy agreements
  • A work relationship is not the same as an employment relationship; the court must examine the total relationship and the intention of the parties
  • In the NGO consortium model, recruitment support and reimbursement of staff costs by a lead partner do not make it the employer of the implementing partner's staff
  • A defamation claim arising within the employment environment is justiciable before the ELRC under Section 12(1) of the ELRC Act
  • Where the authenticity of a document is challenged, the Court may rely on uncontroverted expert opinion, assessed on a balance of probability

Court orders

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  1. 1.Dismissal of the Claimant's claim against the 1st Respondent in its entirety
  2. 2.Dismissal of the claims arising from the consultancy agreement dated 21st July 2008
  3. 3.Rejection of the employment contract dated 2nd May 2009 and letters dated 28th August 2009 and 24th September 2009 as inauthentic, and dismissal of all claims based thereon
  4. 4.Award against the 2nd Respondent in favour of the Claimant of Kshs.163,620.00 comprising gratuity of Kshs.106,920.00, prorata leave of Kshs.41,580.00 and paternity leave of Kshs.15,120.00, subject to statutory deductions
  5. 5.Interest at court rates on the award from the date of the award until payment in full
  6. 6.Direction that the 2nd Respondent issue the Claimant with a certificate of service
  7. 7.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 2 (definitions of employee, employer, contract of service)
  • Employment and Labour Relations Court ActSection 12(1)(a)
  • Penal CodeSections 357(a) and 357(b)
  • Constitution of Kenya, 2010Article 162(2)(a)

Cases cited (4)

  • Ontario Ltd v Sagaz Industries Inc.
    2001 SCC 59
  • Everret Aviation Limited Vs the Kenya Revenue Authority
    [2013] eKLR
  • Wilberforce Ojiambo Oundo v Regent Management
    [2013] eKLR
  • Schneider NO and Others v AA and Another
    2010 (5) SA 203 (WCC)
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Section 12(1) 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, "John Kamau Mburu v Program for Appropriate Technology In Health (Path) & another [2015] KEELRC 484 (KLR)", Case Analysis (2015). Cause No 975 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/484/eng@2015-09-30

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