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ELRCPartially AllowedNot stated in the excerpt (memorandum of claim dated 30.05.2017)

Gathuya v Registered Trustees of Gertrude Garden t/a Gertrude Children’s Home (Cause 1000 of 2017) [2025] KEELRC 585 (KLR)

Employment and Labour Relations Court
27 February 2025
4,752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a hospital consultant was actually an employee, her removal was unfair, and she keeps her practicing rights at the hospital.

What this practically means

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Executive summary

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The claimant, a consultant pediatric anesthetist, sued the respondent hospital alleging unfair termination of her practicing rights in June 2016. She sought reinstatement, loss of earnings from January 2016, general damages, interest and costs, contending she was denied a hearing: the Root Cause Analyses and peer review by the Kenya Society of Anesthesiologists proceeded without her, both cleared her, yet she was suspended and later terminated after an opaque panel hearing held on three days' notice without particularized charges, and minutes of the hearing and appeal were withheld. The respondent denied an employment relationship, asserting a contract for service under which she was an independent consultant, and that she was heard by the Credentialing Committee and peer-reviewed before termination. The Court framed three issues. First, it found the parties were in a contract of service: the respondent controlled performance standards, the claimant was integrated into the hospital's systems and equipment, and payment per patient attended was piece rate payment consistent with the Employment Act, applying the multiple-test and ILO Recommendation 198 on disguised employment. Second, the termination procedure and reasons were unfair under section 45, as the reasons did not relate to her capacity, conduct or operational requirements. Third, on remedies, reinstatement was barred by limitation under section 12 of the ELRC Act; general damages and loss of earnings were abandoned or uncomputable. The Court declared that the parties are entitled to continue the employment relationship with the claimant enjoying practicing rights at the hospital on agreed terms, and ordered each party to bear own costs. Judgment delivered by Byram Ongaya, Principal Judge, on 27 February 2025 at Nairobi.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the parties were in a contract for service or a contract of service (employment relationship)
  2. 2.Whether the procedure and reasons for termination were fair
  3. 3.What remedies, if any, are available to the claimant

Key legal issues

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01

Whether the parties were in a contract of service or contract for service

Holding

The parties were in a contract of service; the respondent controlled the claimant's performance standards, she was integrated into the hospital's operational system, and she was paid per work done.

Reasoning

The Court applied the multiple-test and the guidance in ILO Recommendation 198 on disguised employment, considering all circumstances of the relationship rather than the labels in the contractual instrument. The claimant did not work for herself, was subject to control, complied with operational requirements, used the respondent's equipment, and the piece rate payment of fees per patient attended was consistent with a contract of service under the Employment Act.

p. 8
02

Whether the procedure and reasons for termination were fair

Holding

The procedure was unfair; the claimant was exculpated in the Root Cause Analyses and peer review, yet terminated on grounds unrelated to the seven cases, without due notice or particularized allegations.

Reasoning

The respondent failed to facilitate the claimant's involvement in the Root Cause Analyses and peer review despite an undertaking to put the peer review on hold; the disciplinary hearing was opaque, the agenda request unanswered, and minutes of both hearing and appeal were withheld. The reasons did not relate to her capacity, conduct or the respondent's operational requirements as required by section 45 of the Employment Act.

p. 9
03

What remedies flow from the unfair termination

Holding

Reinstatement, loss of earnings and general damages were refused; a declaration that the parties continue in the employment relationship with practicing rights was granted, with each party bearing own costs.

Reasoning

Reinstatement was barred by the three-year limitation under section 12 of the ELRC Act. General damages and loss of earnings were abandoned or uncomputable given the piece-work arrangement. Given the unique circumstances where the parties have continued in a work relationship, the Court fashioned a declaration permitting the claimant to continue enjoying practicing rights at the hospital.

p. 9

Legal principles established

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  • Where an alleged consultant doctor works under the hospital's control, is integrated into its systems and paid per work done, the relationship is a contract of service and not a contract for service.
  • Payment per patients attended to is consistent with piece rate payment recognized under section 18(1) of the Employment Act and does not negate an employment relationship.
  • A termination procedure is unfair where the employee is not given notice of charges, is excluded from investigative processes and is denied minutes of the disciplinary hearing and appeal.

Court orders

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  1. 1.The declaration that parties are entitled to continue in the employment relationship by the respondent permitting the claimant to continue enjoying the practicing rights at the respondent's hospital and upon such terms and conditions as the parties may agree upon
  2. 2.Each party to bear own costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act and Employment Act, 2007 (unfair termination jurisdiction)

Relief refused

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Reinstatement

The limitation period under section 12 of the Employment and Labour Relations Court Act had lapsed

p. 9

General damages

No submissions were made; the piece-work arrangement was inconsistent with compensation under section 49 of the Employment Act

p. 9

Loss of earnings from January 2016

Could not be computed under the piece work/piece rate payment arrangement; claim deemed abandoned for lack of submissions

p. 9

Costs

Each party to bear own costs of the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court returns that parties were in a contract of service in employer and employee relationship as defined in the Employment Act and as found by the Court.
p. 8Employment relationship found
The Court finds that the procedure adopted to terminate the employment was unfair and the reasons were unfair as they did not relate to the claimant's capacity, conduct or respondent's operational requirements.as per section 45 of the Act.
p. 9Unfair termination
The declaration that parties are entitled to continue in the employment relationship by the respondent permitting the claimant to continue enjoying the practicing rights at the respondent's hospital and upon such terms and conditions as the parties may agree upon.
p. 9Final orders
Each party to bear own costs of the suit.
p. 9Costs

Issues in the judgment

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minor

The termination letter is quoted as dated 01.04.2014 in one passage and 01.04.2016 in the defence pleading; the year is inconsistently stated within the judgment.

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, "Gathuya v Registered Trustees of Gertrude Garden t/a Gertrude Children’s Home (Cause 1000 of 2017) [2025] KEELRC 585 (KLR)", Case Analysis (2025). Not stated in the excerpt (memorandum of claim dated 30.05.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/585/eng@2025-02-27

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