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ELRCDismissedNot stated in the excerpt (memorandum of claim dated May 30, 2014)· [2017] KEELRC 1696 (KLR)

Wanjiku & 10 others v Chief Registrar of the Judiciary & another (Cause 912 of 2014) [2017] KEELRC 1696 (KLR)

Employment and Labour Relations Court
21 February 2017
HWHellen Wasilwa
3,565 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that student interns serving without formal appointment letters were never employees, so they could not claim unfair termination.

What this practically means

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Executive summary

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Eleven claimants, former student interns and attachment students who served the Judiciary between 2012 and 2014 as court clerks, registry clerks and secretaries, sued the Judicial Service Commission and the Registrar of the High Court. They alleged unfair, unlawful and wrongful summary dismissal, discriminative employment practices, unlawful withholding of salaries, unfair labour practices contrary to article 41 of the Constitution, and non-payment of terminal dues. They sought withheld salaries, underpayments, gratuity, reinstatement or conversion to permanent and pensionable terms, a declaration of unlawful termination, notice pay, certificates of service, constitutional and general damages, and compensation up to retirement age. The respondents denied any employment relationship, asserting the claimants were on three-month unpaid attachments or internships, later extended with a daily allowance of Kshs 1,000, and were never appointed by the Judicial Service Commission as required under the Judicial Service Act. The court found the claimants joined as student interns, were released on completion, and though allowed to continue serving with daily allowances subject to statutory deductions, no substantive appointment letter issued. Their entry lacked any competitive recruitment process under article 172 of the Constitution and could not be equated to appointment. Holding that no employer-employee relationship existed, the court found no unfair termination could be alleged and dismissed the entire claim, ordering each party to bear its own costs.

Key legal issues

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01

Existence of an employer-employee relationship

Holding

The court found no employer-employee relationship existed between the claimants and the respondents; the claimants joined as student interns, completed their attachment, and were never substantively appointed

Reasoning

The claimants initially joined as student interns for a fixed period and were released on completion. They were later allowed to continue serving and paid daily allowances of up to Kshs 1,000, subject to statutory deductions, but no substantive appointment letter converted them into employees. Their entry was premised on helping the defunct Industrial Court transition to the Employment & Labour Relations Court, with no advertisement or competitive recruitment by the Judicial Service Commission as required under article 172 of the Constitution. Their service therefore could not be equated to an appointment, and no employment relationship arose.

p. 2
02

Unfair and unlawful termination

Holding

Since no employment relationship existed, the claimants could not allege unfair termination and were not entitled to any of the reliefs sought

Reasoning

Unfair termination presupposes an employment relationship. The court held that the claimants, having never been appointed through a competitive process by the Judicial Service Commission, and their engagement being premised on attachments and informal casual assistance, could not found a claim for unfair termination, discrimination, withheld salaries, terminal dues, reinstatement or damages. The claims were accordingly dismissed in their entirety, with each party bearing its own costs given the intricate nature of the claim.

p. 10

Legal principles established

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  • Judicial Service Commission appointments to the Judiciary must follow a competitive and transparent process under article 172(2) of the Constitution; service without such a process cannot be equated to an appointment
  • An unfair termination claim can only arise where an employment relationship exists

Court orders

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  1. 1.The claimants' claims are dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41; Article 41(1); Article 172; Article 172(2)
  • Employment Act, 2007Section 2; Section 9(1); Section 10(7); Section 35(1); Section 37; Section 41
  • Judicial Service ActThird Schedule, Part III

Cases cited (7)

  • County Government Workers Union v County Government of Nyeri & another
    Petition No 10 of 2015
  • Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute
    [2013] eKLR
  • Maurice Oduor Okech v Chequered Flag Limited
    [2013] eKLR
  • George Onyango Akuti v G4S Security Services Kenya Limited
    [2013] eKLR
  • Nicholas Okemwa & 8 others v Judicial Service Commission
    eKLR [2016]
  • Trusted Society of Human Rights Alliance v Nakuru Water & Sanitation Services Company & another
    [2013] eKLR
  • Sander v Edwards
    [1981] WLR 116
Jurisdiction invoked
Employment and labour relations jurisdiction under article 41 of the Constitution of Kenya, 2010 and the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wanjiku & 10 others v Chief Registrar of the Judiciary & another (Cause 912 of 2014) [2017] KEELRC 1696 (KLR)", Case Analysis (2017). Not stated in the excerpt (memorandum of claim dated May 30, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1696/eng@2017-02-21

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