Otachi v Board of Trustees, Nairobi Pentecostal Church Woodley Campus & 2 others (Cause 897 of 2017) [2022] KEELRC 1644 (KLR)
The bottom line
#A Kenyan court ruled that a church worker called a 'volunteer' was actually an employee, and his dismissal without valid reason was unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an Employee or a Volunteer
He was an Employee; the series of letters issued by the Respondents' officers confirmed an employment relationship dating from 2002
The 2008 letter authorizing driving implied a pre-existing employment relationship; recommendation letters described multiple roles; the Administrator's 2015 letter confirmed employment from 2002. Control, instructions, use of tools of trade and work at the Respondents' premises established employment under common law and employment statutes, regardless of payment source or lack of formal recruitment.
Whether termination was fair
Termination was unfair; the Respondents failed to prove valid reasons and inconsistently claimed he was a volunteer while admitting they asked him to leave
Under Sections 43 and 45 of the Employment Act the employer bears the burden of justifying termination. The Respondents pleaded they never employed the Claimant yet alleged he was asked to leave over security fears. No valid reason was proved; the Claimant played no part in the decision and had served 13 years with commendations.
Which remedies were merited
Service pay for 13 years, notice pay and 12 months' compensation awarded; underpayment, annual leave and house allowance claims failed for want of proof or by concession
Service pay was due as the Respondents did not show N.S.S.F registration. Notice pay was allowed. Underpayment required specific Wage Amendment Orders which were not cited. Leave coincided with school vacations and house allowance was declined since the salary was freely accepted as a Church member.
Legal principles established
#- The employer-employee relationship is not determined by the manner of remuneration, uniforms or recruitment formalities, but by control, instructions, tools of trade and benefit to the employer's business
- It is the Employer's burden under Sections 43 and 45 of the Employment Act to prove valid reasons justifying termination
Court orders
#- 1.It is declared that termination was unfair
- 2.The Respondent shall pay to the Claimant service pay at Kshs. 39,000; notice at Kshs. 6,000; and compensation for unfair termination at Kshs. 72,000 – total Kshs. 117,000
- 3.Costs to the Claimant
- 4.Interest allowed at court rates from the date of Judgment till payment is made in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied; the judgment does not expressly cite the provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otachi v Board of Trustees, Nairobi Pentecostal Church Woodley Campus & 2 others (Cause 897 of 2017) [2022] KEELRC 1644 (KLR)", Case Analysis (2022). Cause No 897 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1644/eng@2022-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.