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ELRCDismissedCause No. 152 of 2014 (consolidated with Cause No. 1227 of 2015)· [2023] KEELRC 1103 (KLR)

Mayamba & 5 others & another v Feed the Children Kenya & another (Cause 152 of 2014 & 1227 of 2015 (Consolidated)) [2023] KEELRC 1103 (KLR)

Employment and Labour Relations Court
8 May 2023
JGJacob Gakeri
9,880 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 volunteers with ID cards and allowances are not employees unless a real employment contract exists.

What this practically means

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Executive summary

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Two consolidated causes were heard together: Cause No. 152 of 2014, brought by six individual Community Mobilizers, and Cause No. 1227 of 2015, brought by the Kenya Scientific Research International Technical and Institutions Workers Union on behalf of 36 grievants, against Lifespring Counselling & Training Centre and its Regional Director. The claimants alleged that they were employed from January 2006 as Community Mobilizers in an HIV/AIDS program at monthly salaries of Kshs.6,000 and Kshs.11,000, and that their employment was unfairly terminated on 18th December 2013 because they joined the union. They sought 12 months' compensation, notice pay, leave, severance, underpayment, house allowance and public holiday pay totaling Kshs.3,541,981 and Kshs.42,019,264 respectively. The Respondent maintained the Mobilizers were part-time volunteers paid a stipend (initially Kshs.500 per day, later Kshs.6,000 monthly at their request), issued ID cards only for identification and security, and that the engagement ended when the Ministry of Health took over the community strategy. After a full hearing, Gakeri J found the claimants failed to prove the dates of engagement or the existence of a contract of service. The identity cards were not conclusive of employment; the payments were a volunteer/transport allowance, not an agreed salary; attendance was unregulated; the Mobilizers worked for other donors; and no statutory deductions were made. The change of strategy was communicated before the union became involved, negating the victimization claim. Both causes were dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Community Mobilizers were employees of the 1st Respondent

Holding

The court found no employment relationship; the Mobilizers were volunteers receiving a gratuitous allowance

Reasoning

Applying the control test and the definitions in Section 2 of the Employment Act, the court found no contract of service. The Mobilizers managed their own schedules, attendance was not mandatory, they worked for other donors, no PAYE/NHIF/NSSF was deducted, and the payments were a transport/volunteer allowance, not an agreed salary.

p. 21
02

Burden of proof as to employment and date of engagement

Holding

The Claimants failed to prove they were salaried employees or when they joined

Reasoning

Under Sections 107 and 108 of the Evidence Act, he who alleges must prove. No documentary evidence of contracts, appointment letters, or joining dates was adduced; dates pleaded were contradictory, and bank deposits did not designate salary.

p. 20
03

Whether termination was actuated by union membership

Holding

No; the program ended due to a change in government strategy before the union joined

Reasoning

The change of strategy had been explained to the Mobilizers on 30th October 2013, before union recruitment in early November 2013. It was improbable the Respondent foresaw union recruitment and convened the October meeting as a pretext. No evidence of harassment was adduced.

p. 18

Legal principles established

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  • A staff identity card is not conclusive proof of an employment relationship; the relationship must be established by oral and documentary evidence
  • A volunteer receiving a stipend or allowance does not thereby become an employee; an employment relationship must be evidenced by an implied or express contract of employment

Court orders

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  1. 1.Cause No. 152 of 2014 dismissed
  2. 2.Cause No. 1227 of 2015 dismissed
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment ActSections 2, 43, 45(5), 48, 49(1)(c), 74
  • Labour Institutions ActSection 48
  • Evidence ActSections 107, 108
  • Regulation of Wages (General) Orders
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (7)

  • Wago Roba Molu v Personal Systems Computer Limited
    (2021) eKLR
  • Richard Stanely Githuku Kinuthia v Kenya Redcross Society
    (2015) eKLR
  • Benard 'B' Kones Ndiema v Twin Oaks Limited
    (2022) eKLR
  • Ngere John Gilbertson v Impact Research and Development Organization
    (2020) eKLR
  • Richard Stanley Gathuku Kinuthia v The Kenya Red Cross Society
    (2016) eKLR
  • Isaac Gakua Mwangi v Chief Executive Director Women Enterprise Fund
    (2022)
  • Universal Church of the Kingdom of God v Myeri Mxolisi Justice & 2 others
    (ZALAC) 2015/31
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Institutions 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, "Mayamba & 5 others & another v Feed the Children Kenya & another (Cause 152 of 2014 & 1227 of 2015 (Consolidated)) [2023] KEELRC 1103 (KLR)", Case Analysis (2023). Cause No. 152 of 2014 (consolidated with Cause No. 1227 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1103/eng@2023-05-08

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