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ELRCDismissedEmployment and Labour Relations Court Claim dated 1st April 2016 (as amended on 12th March 2019)· [2022] KEELRC 869 (KLR)

Isaac Gakua Mwangi v Chief Executive/Director Women Enterprise Fund [2022] KEELRC 869 (KLR)

Employment and Labour Relations Court
10 February 2022
LNLINNET NDOLO
990 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court ruled that a volunteer paid a stipend is not an employee and cannot claim salary or termination benefits.

What this practically means

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Executive summary

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The Claimant, engaged by letter dated 28th October 2011 as a Volunteer for Mathioya Constituency with the Respondent, sued for unlawful termination of employment and terminal dues, claiming service pay, unpaid salary, salary for the balance of a two-year fixed term contract, accrued leave, house allowance, 12 months' damages for unlawful termination and a certificate of service, asserting a monthly salary of Kshs. 20,500. The Respondent denied an employment relationship, pleading that the Claimant was recruited under a Volunteerism Programme on a monthly stipend of Kshs. 5,000 and was not entitled to salary or allowances; in the alternative it justified termination on grounds of poor performance, absconding duty, misconduct and refusal to obey lawful instructions. The court framed one issue: whether an employment relationship existed as defined in law. Applying Section 2 of the Employment Act, which defines an employee as a person employed for wages or a salary, the court found the appointment letter expressly stated the Claimant was not entitled to salary, house or medical allowances and provided only a stipend. Following the South African decision in Universal Church of the Kingdom of God v Myeni and Ongaya J's decision in Richard Stanley Gathuku Kinuthia v Kenya Red Cross Society, the court held that a volunteerism arrangement earning a stipend cannot be converted into an employment relationship. The entire claim failed and was disallowed, with each party bearing their own costs.

Key legal issues

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01

Whether the volunteer engagement letter created an employment relationship

Holding

It did not; the letter expressly provided for a stipend and not a salary, so the Claimant fell outside the statutory definition of employee

Reasoning

Section 2 of the Employment Act defines an employee as a person employed for wages or a salary. The appointment letter of 28th October 2011 described the Claimant as a Volunteer, expressly denied any entitlement to salary, house and medical allowances, and provided only a monthly stipend of Kshs. 5,000. Relying on persuasive foreign and Kenyan authorities on volunteerism, the court held that a volunteerism arrangement cannot found an employment relationship, and the claim could not be sustained.

p. 3

Legal principles established

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  • A person engaged as a volunteer on a stipend, not wages or salary, does not meet the definition of an employee under Section 2 of the Employment Act

Court orders

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  1. 1.The Claimant's entire claim fails and is disallowed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment ActSection 2

Cases cited (2)

  • Universal Church of the Kingdom of God v Myeni, Mxolisi Justice & 2 others
    ZALAC/2015/31
  • Richard Stanley Gathuku Kinuthia v Kenya Red Cross Society
    [2015] eKLR
Jurisdiction invoked
Employment Act, Section 2 (definition of employee) - primary jurisdiction over employment and labour relations disputes

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, "Isaac Gakua Mwangi v Chief Executive/Director Women Enterprise Fund [2022] KEELRC 869 (KLR)", Case Analysis (2022). Employment and Labour Relations Court Claim dated 1st April 2016 (as amended on 12th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/869/eng@2022-02-10

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