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ELRCPartially AllowedCause No. 166 of 2018· [2019] KEELRC 1810 (KLR)

Mark Ngaira Ibochio v World Class Cities Ministries [2019] KEELRC 1810 (KLR)

Employment and Labour Relations Court of Kenya
14 February 2019
MMM. Mbaru
2,086 words in judgment
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The bottom line

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A Kenyan court ruled a church guard was an employee, not a volunteer, and won over half a million shillings after being unfairly replaced while on sick leave.

What this practically means

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Executive summary

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The claimant, aged 76 and illiterate, was engaged by the respondent, a religious society running a nursery school, as a night guard on 31st August 2012 at Ksh.5,000 per month, working 6pm to 7am seven days a week. On 14th May 2017 he sought sick leave and a wage advance for treatment of severe ulcers; the respondent gave him Ksh.5,000 and advised he would be replaced temporarily. When he reported back he was told a new night guard had been hired and his services were no longer required. He sued for underpayments, rest days, notice pay, public holidays, annual leave, severance pay, overtime, a certificate of service and compensation. The respondent denied an employment relationship, asserting the claimant was a volunteer among many worshippers and a beneficiary of charity. The court held that the payment of a constant monthly wage for the single duty of night watchman, unchallenged by evidence, established an employment relationship protected under sections 8, 9, 10 and 37 of the Employment Act, 2007. The respondent's failure to keep records as required by sections 10 and 73 meant the claimant's word had to be believed. Termination without notice, hearing or valid reason - and prompted by the claimant's exercise of his right to sick leave - was unfair under section 45. The court awarded underpayments (less 15% house allowance), overtime, untaken rest days, annual leave in lieu, one month's notice pay and one month's pay as compensation, but declined the public holidays claim as indistinguishable and severance/gratuity as not automatic rights. Judgment was entered for the claimant with costs on 14th February 2019.

Key legal issues

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01

Existence of an employment relationship versus volunteerism

Holding

The claimant was an employee, not a volunteer, because he performed the single duty of night watchman and received a constant monthly wage

Reasoning

The court found the payment of Ksh.5,000 per month unchallenged and the respondent kept no records of volunteers or payments. The defence of voluntary church service was held to be a separate arrangement from the claimant's remunerated night watchman duties. Applying sections 8, 9, 10 and 37 of the Employment Act, allocated duties paid at monthly intervals translate into employment notwithstanding absence of a written contract.

p. 2
02

Fairness of termination

Holding

Termination was unfair and contrary to section 45 of the Employment Act as it was effected without notice, hearing or valid reason

Reasoning

The claimant was replaced while on sick leave. Termination must follow due process under sections 41 or 44 of the Employment Act. Taking sick leave and seeking payment of due wages are statutory rights and cannot constitute valid grounds for termination. The respondent acted under the mistaken belief that the claimant was a volunteer.

p. 3
03

Underpayment claim

Holding

Underpayments confirmed at Ksh.393,555.52 less 15% house allowance, giving Ksh.334,522.00, because the claimant was accommodated

Reasoning

The night watchman position is regulated under the Wage Orders with a minimum wage. The claimant's assessments were in accordance with applicable wages. However, since the respondent provided accommodation - a room or classroom - the 15% house allowance component embedded in the wage claim was deducted, as the accommodation met the legal threshold.

p. 3
04

Overtime and rest day claims

Holding

Overtime awarded at Ksh.124,348.60 and untaken rest days at Ksh.305,344.65 as computed, less house allowance adjustment

Reasoning

A night guard is allowed to work 12 hours per day under wage regulation; the claimant worked 13 hours. The claimant worked 7 days a week without a rest day, which should be paid at double the daily wage. The court applied a 15% house allowance deduction to the rest days computation, consistent with the accommodation provided.

p. 3
05

Duty to keep employment records

Holding

The employer's failure to keep records as required by sections 10 and 73 of the Employment Act weighed entirely against the respondent

Reasoning

The court emphasised that record-keeping is mandatory for every employer, including for volunteers and payments. The respondent, a registered society, kept no records of volunteers or of the monthly payments. This failure disentitled it from disputing the claimant's account of the employment relationship and its terms.

p. 2

Legal principles established

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  • Every employer must keep work records under sections 10(1), (3) and 73 of the Employment Act; failure to keep records means the employee's uncontroverted word must be believed
  • Payment of a constant monthly wage for allocated duties creates an employment relationship even without a written contract, under sections 8, 9, 10 and 37 of the Employment Act
  • Taking sick leave cannot constitute a valid ground for termination of employment

Court orders

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  1. 1.Compensation Ksh.15,374.00
  2. 2.Notice pay Ksh.15,374.00
  3. 3.Payment in lieu of annual leave Ksh.55,881.95
  4. 4.Untaken rest days Ksh.30,344.65
  5. 5.Overtime pay Ksh.124,348.60
  6. 6.Underpayments Ksh.334,522.00
  7. 7.Costs to the claimant

Authorities

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Legislation

  • Employment Act, 2007section 10(1) and (3)
  • Employment Act, 2007section 73
  • Employment Act, 2007section 10(6) and (7)
  • Employment Act, 2007sections 8, 9 and 10
  • Employment Act, 2007section 37
  • Employment Act, 2007section 40
  • Employment Act, 2007sections 41 and 44
  • Employment Act, 2007section 45
  • Employment Act, 2007section 28

Cases cited (1)

  • Kenya Union of Employees of Voluntary and Charitable Organisations (KUEVACO) versus Redeemed Gospel Church (Incorporated)
    Cause No. 443 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over a claim for unfair termination and employment-related dues

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, "Mark Ngaira Ibochio v World Class Cities Ministries [2019] KEELRC 1810 (KLR)", Case Analysis (2019). Cause No. 166 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1810/eng@2019-02-14

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