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ELRCPartially AllowedConstitutional Petition No 137 of 2021· [2024] KEELRC 2703 (KLR)

Ndwiga v Principal Secretary, Ministry of Health & another (Constitutional Petition 137 of 2021) [2024] KEELRC 2703 (KLR)

Employment and Labour Relations Court of Kenya
28 October 2024
7,281 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that interns are employees entitled to pay, awarding 914 former clinical officer interns damages and unpaid salaries from the Ministry of Health.

What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court, delivered by Ocharo Kebira J on 28 October 2024, determines a petition filed on 31 August 2015 by Mary Wanjiru Ndwiga on her own behalf and on behalf of all Clinical Officer Interns (Diploma level) in service at internship hospitals across Kenya. The petitioners complained that although posted by the Ministry of Health in December 2014 and engaged in mandatory one-year internship from January 2015, they were never paid salaries or allowances despite budgetary allocations, while other categories of interns were paid. The respondents denied any employment relationship, asserted the internship was merely facilitated placement, contended the Revised Scheme of Service for Clinical Officers (April 2010) was an unapproved draft, and argued that devolution of health services and lack of authorized establishment or expenditure barred any payment order. The court framed six issues. It held that interns are employees under section 2 of the Employment Act, 2007; that the interns were employees of the National Government through the 1st respondent, the facilitation argument failing for want of any supporting policy or law; that the orders of 4 September 2015 were never set aside, the respondents' contrary contention being rejected as misleading; and that the interns were entitled to Job Group 'H' salary and allowances since the Scheme of Service had been approved. The court found violations of articles 41 (fair labour practices), 30 (slavery and servitude) and 47 (fair administrative action), applying the Mumu Matemu threshold. Judgment was entered jointly and severally: declarations of violation, KSHs 500,000 general damages for each of the 914 petitioners, payment of Job Group H salaries and allowances for twelve months from January 2015, simple interest at court rates, and costs. Compound interest at commercial rates was refused.

Key legal issues

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01

Whether the Clinical Officer Interns (Diploma level) were employees

Holding

The court held that interns are employees under section 2 of the Employment Act, 2007, which includes apprentices and indentured learners, and that the interns were not students but posted, licenced workers.

Reasoning

The court relied on the statutory definitions of 'Intern' and 'Internship' under the Clinical Officers (Training, Registration and Licensing) Regulations, 1998, and on section 2 of the Employment Act which defines an employee to include an apprentice and indentured learner. It endorsed Mbaru J's earlier ruling in the same matter that the interns were stricto sensu not students, having completed college and council exams and been posted by the 1st respondent. Their inclusion in the definition of employee gave them protected status under the Act.

p. 14
02

Whose employees the interns were

Holding

The interns were employees of the National Government, employed through the 1st respondent (Ministry of Health), the claim of a merely facilitative role having been rejected and devolution arguments not sustained.

Reasoning

The respondents' assertion that the 1st respondent's role was merely facilitative was rejected because the respondents failed to point to any policy or law from which such a role flowed. The court found that the posting of the interns was by the Ministry of Health through the Director of Medical Services. The devolution argument was treated as unavailing in the circumstances, and the prior ruling of Mbaru J, unappealed, had discounted the respondents' position.

p. 15
03

Whether the orders of 4 September 2015 were discharged or vacated

Holding

The orders of 4 September 2015 were never set aside; the 23 September 2015 order to render accounts was made to facilitate compliance with those orders, and the respondents' contrary submission was rejected as misleading.

Reasoning

The respondents contended that compliance with the order to render accounts discharged the interim orders. The court read the whole ruling of 23 September 2015 and held that the account-rendering order was deliberately made to facilitate compliance with the 4 September 2015 orders. The court characterized the respondents' argument as a deliberate attempt to mislead it and affirmed that the order and its implications stood.

p. 16
04

Whether the interns were entitled to salary and allowances at Job Group H

Holding

The interns were entitled to salary and allowances for Job Group 'H' for the twelve months of internship, the Revised Scheme of Service for Clinical Officers, April 2010 having been approved and designating them Clinical Officers III (Intern-Diploma) at Job Group 'H'.

Reasoning

The respondents argued the April 2010 Scheme of Service was a draft never operationalized. The court affirmed the finding in the ruling of 23 September 2015 that the Scheme had in fact been approved by the Ministry of Devolution and Planning vide a letter dated 24 March 2014. Clause 4 of the instrument designated Intern Clinical Officers (Diploma level) as Clinical Officers III (Intern-Diploma) under Job Group 'H', with the result that entitlement to that salary scale followed.

p. 17
05

Whether constitutional rights were violated

Holding

The respondents violated the petitioners' rights to fair labour practices (article 41(2)(a) and (b)), freedom from slavery and servitude (article 30(1)), and fair administrative action (article 47).

Reasoning

The court reasoned that the duty to remunerate is a constitutional imperative following article 41, that working over a year without pay under compulsion of mandatory internship amounted to slavery and servitude under article 30(1), and that withholding salaries on the false ground that no Scheme of Service permitted payment breached article 47. The court found the petition met the evidentiary threshold set in Mumu Matemu v Trusted Society of Human Rights Alliance.

p. 17
06

Entitlement to remedies

Holding

The court awarded a global KSHs 500,000 each in general damages for the violated rights (declining the sought KSHs 2,500,000 per violation), salaries and allowances at Job Group H for twelve months from January 2015, simple interest at court rates, and costs.

Reasoning

Having found violation of articles 41, 47 and 30, the court exercised discretion to grant a global compensatory figure of KSHs 500,000 per petitioner rather than the per-violation awards sought. It declined compounded interest at commercial rates but awarded simple interest at court rates on the unpaid salaries from January 2015 and on the damages from judgment, noting non-payment persisted in breach of a court order.

p. 18

Legal principles established

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  • For purposes of Employment and Labour law, interns are employees, including apprentices and indentured learners under section 2 of the Employment Act, 2007.
  • The constitutionalized right to fair labour practices makes the employer's duty to remunerate employees fairly a constitutional imperative, not merely a common law duty.
  • Compelling unpaid workers to continue working without pay because they have no choice amounts to inhuman treatment equivalent to slavery and servitude contrary to article 30(1).
  • Findings in an interlocutory ruling that were not appealed or reviewed bind the court at the hearing of the main petition.

Court orders

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  1. 1.A declaration that the petitioners' constitutional rights under articles 47, 41, and 30 were violated by the respondents.
  2. 2.General damages of KSHs 500,000 for each of the 914 petitioners, for the violated rights.
  3. 3.Payment of entitled salaries and allowances that the petitioners ought to have earned under the Clinical Officers Scheme of Service, April 2010, for twelve months with effect from January 2015; the 1st respondent to compute the same on this basis.
  4. 4.Interest at court rates from January 2015 on the salaries and allowances, till full payment.
  5. 5.Interest at court rates on the awarded general damages from the date of the judgment till full payment.
  6. 6.Costs of the petition to the petitioners.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1),(2),(4)&(5), 29(d)&(f), 30(1), 40(1)(a)&3, 41(1)&(2)(a)(b), 43(1)(a)(e)&(2), 47(1)&(2), 55(a)&(d), 3(1), 10(1)(c)&(2), 73(1)&(2)(b)(d)(e), 201(a)(b)(iii), 232(1)(a)(b)(e)(f)&(2)(a), 234, 185, 28
  • Employment Act, 2007Sections 2, 3(3)&(6), 5, 10, 18(1)(b),(2)(c), 18(2)(c), 20(1)&(2)(a)(b), 25, 26, 27, 28, 34(1)&(2)
  • Clinical Officers (Training, Registration and Licensing) Act, cap 260Generally (regulation of training and internship)
  • Clinical Officers (Training, Registration, Assessment, and Internship) Regulations, 1998Definitions of 'Intern' and 'Internship'
  • Revised Scheme of Service for Clinical Officers, April 2010Clause 4 (Grading Structure, Job Group 'H')

Cases cited (7)

  • James Onduko v Computer for School Kenya
    [2014] eKLR
  • Stanley Mungai Muchai v National Oil Corporation
    [2012] eKLR
  • Naftali Mogaka Nyaboga v Kisii County Government & another
    [2022] eKLR
  • Jonathan Spangler v Centre for African Family Studies (CAFS)
    [2017] eKLR
  • John Gakuo v County Government of Nairobi & 3 others
    [2018] eKLR
  • Mumu Matemu v Trusted Society of Human Rights Alliance & 3 others
    [2013] eKLR
  • Kusow Billows Isaac v Ministry of Interior and Coordination of National Government & 3 others
    [2018] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition for enforcement of fundamental rights and freedoms; Employment and Labour Relations Court jurisdiction)

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, "Ndwiga v Principal Secretary, Ministry of Health & another (Constitutional Petition 137 of 2021) [2024] KEELRC 2703 (KLR)", Case Analysis (2024). Constitutional Petition No 137 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2703/eng@2024-10-28

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