Tenwek Mission Hospital v Orwa (Cause E009 of 2022) [2024] KEELRC 1599 (KLR)
The bottom line
#A Kenyan court ruled that employers cannot force doctors trained on third-party sponsorship to repay salaries or work for them, dismissing the hospital's Kshs 7.4 million claim.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over the subject matter
The subject matter is an employment relationship; the court has jurisdiction under Article 162(2) of the Constitution and Section 12 of the ELRC Act.
The relationship created through the application to PAACS and the instruments was between PAACS and the respondent, falling within the definition of a contract of employment in Section 2 of the Employment Act, which includes contracts of apprenticeship and indentured learnership. The claimant was merely the locale for the training and the pay-point, with PAACS channeling the stipend/salary through it. The dispute over the bond and stipend therefore arose out of a contract of service, vesting jurisdiction in the ELRC.
Limitation under Section 90 of the Employment Act
The claim and counterclaim were filed within the three-year limitation period.
Section 90 requires claims arising from a contract of service to be filed within three years of the act or default. The respondent completed training in December 2019, so the limitation period ran from January 2020 to December 2022. The memorandum of claim filed 24th March 2022 was within time, and the counterclaim filed 20th May 2022 was likewise within time.
Locus standi of the claimant
The claimant has no locus standi to claim the refund; its role was merely facilitative and PAACS, the sponsor, was not joined.
The respondent applied to PAACS, not the claimant; PAACS admitted and sponsored him and paid the salary through the claimant. Clause (g) of the bond provided for refund to the 'program', which is PAACS, not the claimant. The legal status of PAACS was not disclosed and it was not made a party. The claimant expended nothing on the training and cannot claim money it did not pay.
Refund of salary paid during training
Refund of salary paid for services rendered is illegal and unenforceable; the clause for refund of salary is unenforceable in law.
The evidence showed the stipend was a salary paid for services the respondent rendered during training, as evidenced by the annual practicing certificates obtained for him. There was no tabulation of actual training costs. A court cannot rewrite a contract but must interpret it purposively and in compliance with the law; a clause requiring refund of salary for services rendered is illegal and unenforceable.
Whether the respondent was bound to work for the claimant after training
The respondent was never bound to work for the claimant; any attempt to compel him was restraint of trade and illegal.
The application to PAACS provided that the resident would serve in an underserved area of Africa at a hospital identified with PAACS, not the claimant. The claimant offered the respondent a job by letter dated 1st August 2019, showing he was not its employee. Compelling him to work for the claimant upon his declining the offer amounted to restraint of trade, which is illegal, following Geilla v Casman Brown.
The counterclaim
The counterclaim was allowed, being in substance a defence; declarations issued that the respondent owes no monies to the claimant.
The counterclaim sought to bar the claimant perpetually from making the claims made against the respondent. Since the court found the claimant's cause unmerited and dismissed it, the counterclaim was allowed. Declarations were issued that the respondent is not and was never bound to work for the claimant and owes no monies to it, and the claimant was restrained from making demands on the same. Costs of the cause went to the respondent but no costs order was made on the counterclaim.
Legal principles established
#- A claimant who did not pay the monies claimed and whose role was merely facilitative has no locus standi to claim a refund of training sponsorship monies.
- A court may not order refund of a salary paid for services already rendered; a contractual clause for such refund is illegal and unenforceable.
- Forcing an employee to work for an employer upon completion of training in restraint of trade is illegal.
Court orders
#- 1.The claimant's cause is hereby dismissed.
- 2.A declaration be and is hereby issued that the respondent is not and was never bound to work for the claimant.
- 3.A declaration be and is hereby issued that the respondent owes no monies to the claimant and the claimant is hereby restrained by itself, agents, servants, and or others howsoever from making any demands on the same.
- 4.The respondent is awarded the costs of the cause but there is no order on costs for the counterclaim.
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tenwek Mission Hospital v Orwa (Cause E009 of 2022) [2024] KEELRC 1599 (KLR)", Case Analysis (2024). Cause No E009 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1599/eng@2024-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.