Ochieng v Africa Mission Andernach & another (Cause E036 of 2025) [2025] KEELRC 2857 (KLR)
The bottom line
#A Kenyan court ruled a volunteer who became Acting Manager was an employee, and his dismissal without valid reasons or a fair hearing was unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee or a volunteer
The volunteer Service Agreements were not employment contracts, but the claimant's engagement metamorphosed from volunteership to employment effective 15th November 2023 when he was appointed Acting Manager
The parties entered a volunteer Service Agreement with honoraria and both intended it to remain such. However, documents authored by RWI and delivered by the claimant to the National Council for Children Services confirmed his appointment as Acting Manager, not as a volunteer, and RWI admitted the appointment was not as a volunteer. The court therefore found the engagement became employment from 15th November 2023.
Whether the termination was substantively justified
The respondents failed to prove a valid and fair reason; the accusations were generalised, unparticularised and unsupported by any evidence
The termination letter accused the claimant of insults, threats and abuse of vulnerable children, described as reported and confirmed, but no particulars or evidence, oral or documentary, were adduced. Section 45(2)(a) requires a valid reason and Section 43(2) requires reasons the employer genuinely believed to exist, a partly subjective test, yet the respondents made no attempt to demonstrate any factual basis.
Whether the termination was procedurally fair under Section 41
Section 41 was not complied with; the claimant received no notice to show cause and the hearing was scheduled after termination
The claimant was invited by a notice dated 2nd April 2024 for a meeting on 4th April 2024, the same date his employment was terminated. RWI confirmed the hearing was scheduled after termination. There was no evidence, such as minutes, that the meeting took place, and the allegations were to be availed only at the meeting.
Quantum of compensation and salary entitlement
The claimant was awarded the equivalent of five months' gross salary of Kshs.37,500 (Kshs.187,500) under Section 49(1)(c); claims for long-period salary arrears were speculative
As Acting Manager the claimant qualified only for an acting allowance of 25% on his Kshs.30,000 honoraria, giving Kshs.37,500. The alleged Kshs.300,000 manager's salary had no verifiable basis. In assessing compensation the court considered the short service, nominal contribution to termination, absence of prior incidents and the claimant's failure to seek reinstatement.
Legal principles established
#- For an employment relationship to exist, the parties must have entered into an agreement under which the employer agrees to employ and the employee agrees to serve, with wages or salary passing as consideration
- An acting appointment is not a substantive appointment; the employee retains his substantive position and qualifies only for an acting allowance, typically 25% of current salary
- For a termination to pass the fairness test, the employer must demonstrate a valid and fair reason and conduct the termination in accordance with a fair procedure
- A hearing scheduled after termination of employment does not comply with Section 41 of the Employment Act
Court orders
#- 1.Declaration that termination of employment was unfair
- 2.Equivalent of 5 month's gross salary Kshs.187,500.00 with interest from date of judgment till payment in full
- 3.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Article 41 labour relations dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Africa Mission Andernach & another (Cause E036 of 2025) [2025] KEELRC 2857 (KLR)", Case Analysis (2025). ELRC Claim dated 13th May, 2025 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2857/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.