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ELRCDismissedELRC Cause (Nairobi), filed 9th February 2017· [2023] KEELRC 2399 (KLR)

Kioko & 2 others v Safaricom Limited (Cause 233 of 2017) [2023] KEELRC 2399 (KLR)

Employment and Labour Relations Court
4 October 2023
JGJACOB GAKERI
5,512 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a training offer with a stipend is not a job, so the three former Safaricom trainees lost their case entirely.

What this practically means

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Executive summary

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Three Claimants sued Safaricom alleging unfair termination of employment arising from a recruitment for Customer Experience Executives. Having successfully completed a four-level recruitment process and received a congratulatory email on 14th November 2016, they were instead presented on 16th November 2016 with a Training Offer for an 8-week programme at a monthly stipend of Kshs.25,000/=, terminable on 5 days' notice, which they signed. The training was discontinued after 10 days on the ground that their credentials were unsuitable, without particulars. The Claimants claimed constitutional damages, compensation and payment for the balance of the training period, alleging they were employees whose right to fair labour practices was violated and that they signed the training contract under duress. The Respondent maintained there was never an employment relationship, only a training opportunity, and that duress was unproved. The court framed three issues: employee status, duress, and entitlement to reliefs. It held that a job advertisement is neither an offer nor an invitation to treat; the Respondent never made an offer of employment, and the training contract the Claimants accepted was unambiguous. The Claimants failed to prove duress, offering no particulars and raising no protest. Consequently, no employment relationship existed, and the court held it had no jurisdiction to entertain the suit. The claim was dismissed on 4th October 2023 with no orders as to costs.

Key legal issues

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01

Whether the Claimants were employees of the Respondent

Holding

The Claimants were not employees; they signed an unambiguous training offer which was not an offer of employment, and failed to prove an employment relationship on a balance of probabilities

Reasoning

The court applied contract principles: the advertisement was a mere display of positions, the applications were invitations to treat, and the Respondent never made an offer of employment. The congratulatory letter was not an appointment or offer letter. The training contract, with a stipend and a terminal competency examination, was accepted as signed. The Claimants did not qualify as apprentices or indentured learners on the evidence.

p. 10
02

Whether the training contract was vitiated by duress

Holding

No; the Claimants adduced no particulars of the alleged duress, did not protest, and read and understood the document

Reasoning

The Claimants bore the burden under Sections 107 and 109 of the Evidence Act. They gave no evidence of the circumstances of signing, who exerted the alleged pressure, its form or location. The 3rd Claimant admitted he had a day to read and reflect and understood it was for training only. Pleadings lacked particulars of duress. The allegations were unsubstantiated.

p. 12
03

Whether the court had jurisdiction to entertain the suit

Holding

Having found no employment relationship, the court held it had no jurisdiction and dismissed the suit

Reasoning

Jurisdiction of the ELRC is predicated on an employment relationship. Since the Claimants failed to establish they were employees or had a legitimate expectation, the court, invoking the principle that jurisdiction is everything, declined to entertain the claim and downed its tools.

p. 12

Legal principles established

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  • Advertising for positions for purposes of employment is neither an offer nor an invitation to treat; it is a mere display of positions
  • A party who signs a clear contract, having read and understood its contents, is bound by its terms including the termination clause
  • He who alleges duress bears the burden of proving it, and for duress to vitiate a contract it must be exerted by the other party to the contract

Court orders

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  1. 1.The instant suit is dismissed with no orders as to costs

Authorities

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Legislation

  • Employment Act, 2007Section 2
  • Employment Act, 2007Section 5(3)(a) and (b)
  • Employment Act, 2007Sections 3(6), 35(1)(c), 41, 45(2)
  • Evidence ActSections 107, 109
  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (18)

  • Mary Wanjiru Ndwiga & 913 others V Permanent Secretary Ministry of Health & Attorney General
  • Yussuf Alio Guyo V Commandant Kenya Prisons Stafi Training College & others
  • Theresiah Wayua King'oo V Nodor Kenya EPZ Ltd
  • Jackline Migare Kitunzi V Junior Hearts Academy
  • Fadhil Juma Kisua V Kenya Ports Authority
  • Anthony Mkala Chitavi V Malindi Water & Sewerage Co. Ltd
    (2013) eKLR
  • Mary Chemweno Kiptui V Kenya Pipeline Co. Ltd
    (2014) eKLR
  • Ready Mixed Concrete (South East) Ltd V Minister of Pension & National Insurance
    (1968) 2 QB 497
  • Moses Kuria V Airbus Southern Africa (PTY) Ltd Kenya Branch
    (2022) eKLR
  • Muriungi Kanoru Jeremiah V Stephen Ungu M'mwarabua
    (2015) eKLR
  • David Mwangi Gioko & 5 others V Nairobi City Water & Sewerage Co. Ltd
    (2013) eKLR
  • Peter Gachenga Kimuhu V Kenol Kobil Ltd
    (2014) eKLR
  • Erick Karanja Gakonyo V Samson Gathimba
    (2011) eKLR
  • Anarita Karimi Njeru V Republic
    (1979) KLR 154
  • Alphonse Maghanga Mwachanya V Operation 680 Ltd
    (2013) eKLR
  • D.K. Njagi Marete V Teachers Service Commission
    (2020) eKLR
  • Carlill V Carbolic Smoke Ball Co. Ltd
    (1893) 1 QB 256
  • Michael Ouma Odero on his own behalf and on behalf of 506 others V Public Service Commission & 2 others
    (2021) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (court held it lacked jurisdiction having found no employment relationship)

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, "Kioko & 2 others v Safaricom Limited (Cause 233 of 2017) [2023] KEELRC 2399 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi), filed 9th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2399/eng@2023-10-04

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