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ELRCPartially AllowedKisii CMCELRC No. 1 of 2020 (appeal therefrom; Record of Appeal lodged 11th March, 2022)· [2023] KEELRC 2816 (KLR)

Atege v Monda (Appeal E007 of 2022) [2023] KEELRC 2816 (KLR)

Employment and Labour Relations Court
9 November 2023
2,161 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a paid intern is legally an employee, so ending an internship without a written contract or notice was unfair termination.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu (Baari J) from a judgment of the Trial Court delivered on 15th June 2021 dismissing the Appellant's claim in Kisii CMCELRC No. 1 of 2020 on the ground that he had failed to prove his employment relationship with the Respondent on a balance of probability, with each party bearing its own costs. The Appellant, who claimed to have been employed as an Accountant at Kisii Shell Filling Station and orally terminated, appealed on nine grounds, principally that the Trial Magistrate ignored the Respondent's statutory duty under Sections 10, 73 and 74 of the Employment Act to maintain employment records, and misapprehended the evidence. The Respondent maintained the Appellant was merely an intern paid a monthly stipend of Kshs. 15,000 through a bank account. The court condensed the nine grounds into two issues: whether the Appellant proved employment and unfair termination, and whether he was entitled to the reliefs sought. Applying United India Insurance Co. Ltd v East African Underwriters, the court re-evaluated the record. It held that under Section 2 of the Employment Act an intern is an apprentice or indentured learner and thus an employee, following James Onduko and Mary Wanjiru Ndwiga. The Respondent's admission that the Appellant was his intern, combined with bank evidence of wages, established the employment relationship. Absent a written contract and any notice of termination, the termination was unfair. The claim for underpayment to Kshs. 32,000 failed for want of proof, but February 2017 wages, one month's salary in lieu of notice, and two months' salary as compensation were awarded, totaling Kshs. 60,000. The appeal was allowed with costs to the Appellant.

Key legal issues

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01

Whether an intern is an employee under the Employment Act

Holding

Yes. An intern is an apprentice or indentured learner within Section 2 of the Employment Act and therefore an employee; payment of a monthly stipend through a bank account confirmed the employer-employee relationship

Reasoning

Section 2 defines an employee as one employed for wages or salary, including an apprentice or indentured learner. An intern paid wages falls squarely within that definition. The court relied on James Onduko v Computer for School Kenya and Mary Wanjiru Ndwiga, holding that the draftsman intended to include indentured learners whether remunerated or not. The Respondent's admission that the Appellant was his intern, and that he paid him wages of Kshs. 11,000 to 15,000 per the bank statement, confirmed the relationship, and imposed the statutory duty to contract in writing.

p. 4
02

Whether the termination was unfair

Holding

Yes. With no written contract and no notice of termination or of the end of the internship, the Appellant was unfairly terminated

Reasoning

Once an employer-employee relationship is established, the employee is entitled to statutory rights during separation. At the very least the Appellant was entitled to notice of the end of the internship period, or to the Section 41, 43, 45 and 47 rights if termination was for misconduct. The employer bore the burden to reduce the internship terms into writing and failed to do so. In the absence of a written contract and notice, the court held the termination unfair and awarded compensation under Sections 49 and 50.

p. 4
03

Whether the Appellant was entitled to underpayment of wages

Holding

No. The claim for underpayment failed for want of proof

Reasoning

The Appellant claimed he was agreed Kshs. 32,000 but paid only Kshs. 15,000, and that payment vouchers were retained by the Respondent. The court reasoned that if the Appellant served as Accountant, he would himself have prepared those vouchers, and his failure to produce a single voucher evidencing higher payment cast doubt on his claim. There being no proof of entitlement beyond Kshs. 15,000, that head of claim was dismissed.

p. 5
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Standard for interfering with a trial court's decision on appeal

Holding

The court adopted the classic criteria in United India Insurance Co. Ltd v East African Underwriters: interference only for misdirection in law, misapprehension of facts, wrong considerations, omitted considerations, or a plainly wrong decision

Reasoning

As a first appellate court, the ELRC would re-evaluate, re-assess and re-analyze the record while bearing in mind that it neither saw nor heard the witnesses. It applied the United India Insurance criteria to test whether the Trial Magistrate's conclusions should stand, then independently found that the trial court misdirected itself by overlooking the statutory status of interns and the employer's duty to keep and issue employment records.

p. 3

Legal principles established

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  • An intern falls within the statutory definition of an employee under Section 2 of the Employment Act, and an employer is obliged to reduce the internship terms into writing; an intern earning wages is an employee
  • Where the employer fails to reduce the employment/internship terms into writing as required by law and terminates the employee without notice or procedure, the termination is unfair
  • A first appellate court may interfere with a trial court's discretionary decision only on established grounds: misdirection in law, misapprehension of the facts, taking or failing to take account of relevant considerations, or a plainly wrong decision

Court orders

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  1. 1.The Trial Court's finding that the Appellant did not prove his case is set aside and substituted with a declaration that the Appellant was an employee of the Respondent
  2. 2.A declaration that the Appellant was unfairly terminated
  3. 3.The Respondent pays the Appellant wages for the month of February, 2017 at Kshs. 15,000/-
  4. 4.Salary in lieu of notice at Kshs. 15,000/-
  5. 5.Two months' salary for the unfair termination at Kshs. 30,000/-
  6. 6.The Respondent shall bear the costs of the appeal

Authorities

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Legislation

  • Employment ActSection 2 (definition of employee)
  • Employment ActSection 10(6) and (7)
  • Employment ActSections 41, 43, 45
  • Employment ActSection 47(5)
  • Employment ActSections 49 and 50
  • Employment ActSections 73, 74

Cases cited (8)

  • United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd
    [1985] E.A
  • Florence Arinji Khalakai v Eastern Produce Kenya Limited
    (2016) eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    (2021) eKLR
  • Omusamia v Upperhill Springs Restaurant
    (Cause 852 of 2017) [2021] KEELRC 3 (KLR) (5 October 2021)
  • William Wachira Waruinge v Kago Mukunya & Associates
    (2020) eKLR
  • James Onduko v Computer for School Kenya
    [2014] eKLR
  • Mary Wanjiru Ndwiga & 913 Others v Principal Secretary, Ministry of Health & Another
    [2015] eKLR
  • Stanley Mungai Muchai v National Oil Corporation
    [2012] eKLR
On appeal from
Trial Court (Chief Magistrate's Court, Kisii - CMCELRC No. 1 of 2020)
Kisii CMCELRC No. 1 of 2020
Jurisdiction invoked
Appellate jurisdiction over the Trial Court's judgment of 15th June 2021 in Kisii CMCELRC No. 1 of 2020 (Employment Act, 2007)

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, "Atege v Monda (Appeal E007 of 2022) [2023] KEELRC 2816 (KLR)", Case Analysis (2023). Kisii CMCELRC No. 1 of 2020 (appeal therefrom; Record of Appeal lodged 11th March, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2816/eng@2023-11-09

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