John Kamau Mburu v Program for Appropriate Technology In Health (Path) & another [2015] KEELRC 484 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Existence of an employment relationship with the 1st Respondent
No employment relationship existed between the Claimant and PATH despite its role in recruitment and funding
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.
Jurisdiction over the consultancy agreement
The Court has no jurisdiction over claims arising from a consultancy agreement
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.
Authenticity of the Claimant's documents
The employment contract dated 2nd May 2009 and the letters of 28th August 2009 and 24th September 2009 were forgeries
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.
Unfair termination
No unfair termination; the Claimant served his full annual contract which was not renewed
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.
Entitlement to gratuity, annual leave and paternity leave
Gratuity at 15% of basic salary, prorata leave pay and 7 days' paternity leave awarded against the 2nd Respondent
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.
Legal principles established
#- 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
#- 1.Dismissal of the Claimant's claim against the 1st Respondent in its entirety
- 2.Dismissal of the claims arising from the consultancy agreement dated 21st July 2008
- 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.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.Interest at court rates on the award from the date of the award until payment in full
- 6.Direction that the 2nd Respondent issue the Claimant with a certificate of service
- 7.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution; Section 12(1) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mukabwa v Better Stream Care Limited (Cause E012 of 2025) [2025] KEELRC 2648 (KLR)[2025] KEELRC 2648 (KLR)30 Sept 2025
Cite this brief
#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.