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ELRCPartially AllowedELRC Claim dated 13th May, 2025 (Kisumu)· [2025] KEELRC 2857 (KLR)

Ochieng v Africa Mission Andernach & another (Cause E036 of 2025) [2025] KEELRC 2857 (KLR)

Employment and Labour Relations Court
23 October 2025
4,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant sued the respondents alleging unfair termination of his employment. He claimed he was employed as a social worker at Kshs.30,000 per month and was appointed Acting Manager of the Orphanage from 15th November 2023 for three years, without agreed remuneration, and that his engagement was summarily terminated on 2nd April 2024. The respondents maintained he was a volunteer paid a stipend and that termination was for cause. The court found that the volunteer Service Agreements dated 1st January 2023 and the 2024 renewal were not employment contracts, since both parties intended a voluntary engagement with honoraria. However, documentary evidence authored by RWI, Mr. Kevin Krahn, and delivered by the claimant to the National Council for Children Services confirmed his appointment as Acting Manager effective 15th November 2023, not as a volunteer, so his engagement metamorphosed into employment on that date. As Acting Manager he was entitled only to an acting allowance of 25% of his Kshs.30,000 honoraria, giving a gross salary of Kshs.37,500; the claimed Kshs.300,000 or Kshs.150,000 salaries were speculative. On termination, the respondents failed to prove a valid reason: the accusations of insults, threats and abuse of vulnerable children were generalised and unsupported by evidence. Procedurally, the hearing was scheduled after the termination letter, contrary to Section 41 of the Employment Act, and no notice to show cause was issued. The termination was therefore unfair. The court declared the termination unfair, awarded the equivalent of five months' gross salary (Kshs.187,500) with interest, and costs. The declaration of two distinct contracts and the claim for salary arrears were declined, and damages for illegal termination were dismissed as unknown to the Employment Act. Judgment was delivered virtually at Kisumu on 23rd October 2025.

Key legal issues

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01

Whether the claimant was an employee or a volunteer

Holding

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

Reasoning

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.

p. 6
02

Whether the termination was substantively justified

Holding

The respondents failed to prove a valid and fair reason; the accusations were generalised, unparticularised and unsupported by any evidence

Reasoning

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.

p. 8
03

Whether the termination was procedurally fair under Section 41

Holding

Section 41 was not complied with; the claimant received no notice to show cause and the hearing was scheduled after termination

Reasoning

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.

p. 8
04

Quantum of compensation and salary entitlement

Holding

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

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.Declaration that termination of employment was unfair
  2. 2.Equivalent of 5 month's gross salary Kshs.187,500.00 with interest from date of judgment till payment in full
  3. 3.Costs of the suit to the claimant

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Employment ActSection 2
  • Employment ActSection 41
  • Employment ActSection 43(2)
  • Employment ActSection 45
  • Employment ActSection 45(2)(a)
  • Employment ActSection 49
  • Employment ActSection 49(1)(c)
  • Employment ActSection 17(1)
  • Children Act
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (20)

  • Magdalene M. Ngea v National Cereals & Produce Board
    [2015] eKLR
  • Anne Wino Misumi Gumbi v Youth Enterprises Development Fund Board
    [2018] eKLR
  • Iyego Farmers' Co-operative Sacco v Kenya Union of Commercial Food and Allied Workers
    Civil Appeal No. 12 of 2015
  • Elizabeth Washeke & 62 others v Airtel Networks Ltd
    [2013] eKLR
  • Standard Group Ltd v Jenny Lhesby
    [2018] eKLR
  • Kenfreight (EA) Ltd v Benson K. Nguti
    [2016] eKLR
  • Edah Cherono Maiywa v University of Nairobi Enterprises and Services
    [2020] eKLR
  • Silas Kaumbuthu Mbutura v Meru Central Diary Co-operative Union Ltd
    [2015] eKLR
  • Peter Mwangi v Board of Trustees Catholic Diocese of Nyeri
    [2020] eKLR
  • Peterson Ndungu & 5 others v Kenya Power & Lighting Co. Ltd
    2014 eKLR
  • Kenya Union of Voluntary and Charitable Organizations (KUEvACO) v Redeemed Gospel Church
    [2017] KEELRC 441(KLR)
  • Charles Mwangi Gitundu v Glorim Co. Ltd
    [2015] eKLR
  • Kwamboka v Symbio Health Care Ltd
    [2025] KEELRC 1721 (KLR)
  • Banking Insurance & Finance Union v Co-operative Bank of Kenya Ltd
    [2021] eKLR
  • Mary Wanjiku v Aga Khan University Hospital
    [2024] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Naima Khamis v Oxford University Press (EA) Ltd
    [2017] eKLR
  • Kenya Revenue Authority v Ruewel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    [2017] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Article 41 labour relations dispute)

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, "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.