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ELRCDismissedNot stated in the judgment as provided· [2016] KEELRC 1205 (KLR)

Richard Stanley Gathuku Kinuthia v Kenya Red Cross Society [2016] KEELRC 1205 (KLR)

Employment and Labour Relations Court
13 May 2016
BOBYRAM ONGAYA
1,050 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 a volunteer receiving housing and a stipend, not wages, is not an employee entitled to termination compensation.

What this practically means

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Executive summary

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The claimant, employed as a watchman at Wagitheru shop in Murang'a town, filed a statement of claim on 23.01.2015 seeking Kshs. 738,297.85 together with one month's pay in lieu of notice, accrued leave for five years, 270 rest days, 59 public holidays worked, underpayment of salary, home allowance, severance pay and 12 months' salary as compensation for unfair termination, plus costs and interest. He alleged he was employed by the respondent's committee from 15.09.2008 as a night watchman at a salary rising from Kshs. 2,000 to Kshs. 3,500, and that he stopped working after being attacked by thugs and hospitalised at Kenyatta National Hospital. The respondent, through a memorandum of response filed on 19.03.2015, denied any employment relationship and sought dismissal of the claim. The court found that the claimant's relationship with the respondent fell within the respondent's engagement of a volunteer: he was given housing accommodation at the respondent's premises upon his voluntary offer and received a monthly stipend, and under the respondent's volunteer policy 2012 volunteerism involved no intention of financial gain. He was therefore not an 'employee' under section 2 of the Employment Act, 2007. In the alternative, the court found that the claimant ended the relationship voluntarily due to failing health, rendering the unfair termination claim misconceived. The court noted the respondent's omission to document the volunteer arrangement. The claim was dismissed with each party bearing own costs.

Key legal issues

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01

Existence of an employment relationship

Holding

There was no employment relationship; the claimant was a volunteer who received housing accommodation and a stipend, not wages.

Reasoning

The court found the claimant worked at Wagitheru shop during the day and was given accommodation at the respondent's premises out of sympathy. He reported mischief on the premises while housed there. The respondent's volunteer policy 2012 defined volunteerism as activity for common good by free choice without intention of financial gain. Since the benefit was in kind (housing) and not a wage, the claimant fell outside the definition of 'employee' in section 2 of the Employment Act.

p. 3
02

Unfair termination

Holding

The claim of unfair termination was misconceived and unfounded; the claimant voluntarily ended the relationship due to failing health.

Reasoning

The court held in the alternative that even if an employment relationship existed, the claimant himself decided to end it because of his health, having never resumed duties after hospital discharge. No termination by the respondent occurred, so allegations of unfair termination could not stand.

p. 3

Legal principles established

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  • A person engaged for benefit in kind (housing) under a volunteer arrangement, without intention of financial gain, is not an 'employee' within section 2 of the Employment Act, 2007.

Court orders

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  1. 1.Judgment entered for the respondent against the claimant
  2. 2.The claimant's case dismissed
  3. 3.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Actsection 2
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Richard Stanley Gathuku Kinuthia v Kenya Red Cross Society [2016] KEELRC 1205 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1205/eng@2016-05-13

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