https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2012

Anglican Church of Kenya Diocese of Embu v Wanja (Employment and Labour Relations Appeal E050 of 2025) [2026] KEELRC 2012 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEELRC 2012 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Employment and Labour Relations Appeal E050 of 2025 SC Rutto, J June 26, 2026 Between Anglican Church of Kenya Diocese of Embu Appellant and Rev Elijah Gichangi Wanja Respondent (An Appeal from the Ruling and order of the Honourable Chief Magistrate Francis Kyambia at the Chief Magistrate's court at Embu, delivered on 7th October 2025 in MCELRC No. E006 of 2025) Judgment 1.The Respondent instituted proceedings against the Appellant before the Chief Magistrate’s Court at Embu by way of a Memorandum of Claim filed in CMCELRC Cause No. E006 of 2025, Rev. Elijah Gichangi Wanja v Anglican Church of Kenya Diocese of Embu. 2.In the said Memorandum of Claim dated 12th May 2025, the Respondent averred that he was employed by the Appellant in 2005 and served as a Deacon within the Cathedral Diocese of Embu. 3.The Respondent pleaded that he faithfully and diligently discharged his duties in accordance with the principles and Constitution of the Anglican Church of Kenya (ACK) until 24th May 2016, when the Appellant suspended him for a period of six (6) months on account of criminal charges preferred against him in Embu MCSO/E008 of 2020, Republic v Elijah Gichangi. 4.According to the Respondent, the suspension letter expressly provided that the suspension would remain in force pending the final determination of Embu MCSO/E008 of 2020, upon which the Appellant would make a decision regarding his continued role in the pastoral ministry within the Diocese. 5.The Respondent further averred that he was entitled to half salary during the initial six (6) months of suspension. He contended that upon the lapse of the said period, he was neither recalled to duty nor informed of any further decision, leading him to conclude that the suspension had become indefinite. 6.The Respondent stated that he was acquitted of the criminal charges on 27th November 2024 and promptly notified the Appellant of the outcome, providing it with copies of the charge sheet, proceedings, and judgment. 7.It was the Respondent’s case that, in light of the terms of the suspension letter, he legitimately expected to be reinstated to his ministerial duties following his acquittal. 8.He averred that despite making several requests, follow-ups, inquiries, and appeals to the Appellant, no response was forthcoming. 9.To this end, the Respondent contended that the Appellant’s continued failure to lift the suspension or reinstate him after his acquittal amounted to constructive dismissal, which he deemed unlawful and unfair. 10.On the basis of the foregoing, the Respondent sought declarations that he had been constructively dismissed and subjected to discriminatory treatment. He further prayed for an award of Kshs 6,514,000.00 comprising one month’s salary in lieu of notice, compensation for unfair dismissal, salary arrears, service pay, house allowance, communication allowance, medical allowance, and accrued leave pay. 11.The Appellant opposed the claim through a Memorandum of Defence dated 11th June 2025. It denied the existence of an employment relationship between the parties and maintained that no contract of service existed. The Appellant further contended that the Respondent merely discharged spiritual and pastoral functions, matters which, in its view, fell outside the Court’s jurisdiction. 12.The Appellant averred that the Respondent was an ordained Deacon who served as a shepherd of the ACK in various parishes and was, as at January 2016, stationed at ACK Mbiruri Parish. 13.The Appellant further maintained that membership in the diaconate is a spiritual calling rather than a profession capable of constituting employment. 14.Additionally, the Appellant contended that any claims founded on the alleged unlawful suspension and/or unfair termination were statute-barred. On this score, the Appellant urged the Trial Court to strike out the claim in its entirety with costs. 15.Subsequent to filing the Defence, the Appellant filed a Notice of Motion, which was amended on 30th June 2025, seeking an order striking out the Respondent’s Memorandum of Claim. 16.The Motion was premised on the grounds that the Court lacked jurisdiction to entertain the dispute since the Respondent was an ordained Deacon serving as a shepherd of the ACK and was not engaged under a contract of service. The Appellant further asserted that the claim relating to the suspension was time-barred, having not been instituted within the period prescribed under Section 89 of the Employment Act. 17.The Respondent opposed the Motion through a Replying Affidavit sworn on 16th June 2025. 18.In the said affidavit, the Respondent maintained that he was employed by the Appellant under a contract of service and had served in various capacities as a Deacon. He further averred that the Appellant paid his salary and remitted statutory deductions, including NHIF and NSSF contributions. 19.The Respondent further stated that, throughout his engagement, he was answerable to and operated under the supervision of the Bishop in charge of the ACK Diocese of Embu. 20.The Respondent further challenged the Appellant’s contention on limitation, arguing that his suspension was expressly tied to the final determination of Embu MCSO/E008 of 2020, after which the Appellant was to determine his future role in the pastoral ministry. He maintained that time began to run only upon his acquittal on 27th November 2024. 21.He further contended that he remained a valid employee during the period of suspension and was therefore entitled to salary and attendant benefits throughout that duration. 22.Upon considering the Notice of Motion, the Respondent’s Replying Affidavit and the parties’ respective submissions, the learned Trial Magistrate, in a Ruling delivered on 7th October 2025, found that the Respondent had demonstrated that the Appellant paid his salary and effected statutory deductions on his behalf. The learned Trial Magistrate further observed that the Respondent had been transferred from one parish to another at the Appellant’s instance, thereby demonstrating the element of control. Consequently, the learned Trial Magistrate held that the Respondent was an employee as envisaged under Section 2 of the Employment Act. 23.The learned Trial Magistrate further held that the claim was not statute-barred, finding that the cause of action accrued upon the Respondent’s acquittal on 27th November 2024. The learned Trial Magistrate further held that since the Memorandum of Claim had been filed on 12th June 2025, it was lodged within the prescribed limitation period. Accordingly, the Notice of Motion by the Appellant was dismissed with costs. 24.Aggrieved by the said Ruling, the Appellant lodged the present Appeal and advanced the following five (5) grounds in support thereof:1.The Learned Trial Magistrate erred in law and fact in failing to find, on the Respondent’s pleading, that the court lacked jurisdiction to hear and determine the claim.2.The Learned Trial Magistrate erred in law in failing to find that the Respondent’s claims were time-barred under Section 89 of the Employment Act.3.The Learned Trial Magistrate erred in law and fact by considering evidence that was at variance with the Respondent’s pleadings.4.The Learned Trial Magistrate erred in law and fact in failing to appreciate the nature of the relationship between the Appellant and the Respondent, was that of the Respondent’s calling to propagate his Christian faith which did not result in an employer-employee relationship. There was no contract of service between the Appellant and the Respondent.5.The Learned Trial Magistrate erred in law in failing to find that there was no cause of action disclosed in the Respondent’s statement of claim and dismissing the Appellant’s application dated 30th June 2025. 25.Accordingly, the Appellant prays that:a.This Appeal be allowed.b.The Ruling delivered on 7th October 2025 in MCELRC No. E006 of 2025 be set aside in its entirety and be substituted with an order allowing the Appellant’s application dated 30th June 2025 seeking to strike out the Respondent’s Claim.c.The costs of this Appeal be awarded to the Appellant. The Submissions 26.The Appeal was canvassed by way of written submissions. On its part, the Appellant has submitted that Section 12 of the Employment and Labour Relations Court Act does not confer jurisdiction to the Court on the determination of matters of a spiritual or religious character. 27.It is the Appellant’s further submission that the Respondent did not plead that his duties in the Ministry were contractual. In the Appellant’s view, the Memorandum of Claim clearly demonstrated the lack of an employer-employee relationship and brought out the Respondent’s membership as a deacon. In support of its position, the Appellant has sought to rely on the decisions in President Methodist Conference v Preston (2013) UKSC 29, Rogers v Booth (1937) 2 All ER 751, 754, and Davies v Presbyterian Church of Wales (1986) 1 WLR 323. 28.The Appellant has maintained that the Respondent’s rights and duties arose entirely from his status as a deacon. 29.Referencing the case of Magnate Ventures Ltd v David Odowri Namuhisa (Civil Appeal 58 of 2018) [2020] KECA 457 (KLR), the Appellant further submits that there can be no inference of an implied employment relationship where a party has expressly stated that he was bound by a specific instrument. 30.In this regard, the Appellant contends that the Trial Court erred in going on an exploration course to look into the factors that determine the subsistence of an employment relationship while disregarding the specific instrument that had been cited by both parties in their pleadings as the instrument guiding their relationship. 31.The Appellant has further contended that the learned Trial Magistrate failed to note that the issues raised in the claim are strictly doctrinal and fell outside the Court’s purview. In the same breath, the Appellant further posits that since the dispute centers on the Respondent’s moral fitness and his religious role, they constitute non-justiciable questions that the Trial Court ought to have declined. To this end, the Appellant has cited the cases of Geoffrey Muthinja & another v Samule Muguna Henry & 176 others (2015) KECA 304 (KLR) and Blake v Associated Newspapers Limited (2003) EWHC 1960 (QB). 32.It is further submitted by the Appellant that by voluntarily joining the church, the Respondent committed to adhering to its constitution and coordination principles. That consequently, any disputes regarding his conduct in office are internal matters for the church body, not the Court. 33.With regards to the issue of the time bar, the Appellant has submitted that the letter did not state that the suspension would be extended beyond six (6) months or up to the determination of the criminal case. 34.The Appellant has further contended that the Respondent’s claim, having been made outside the mandatory timelines established under Section 89 of the Employment Act, ought to have been struck out on a preliminary basis. To buttress this position, reference has been made to the case of Michira & 41 others v Aegis Kenya Ltd t/a Leopard Beach Hotel (2023) KEELRC 2551 (KLR). 35.It is further submitted by the Appellant that the facts pleaded in the Memorandum of Claim do not establish a continuing injury within the meaning of the Act. In the Appellant’s view, the Respondent was not within employment to assert that the suspension /termination was a continuing injury, an issue not addressed by the Trial Court in its finding. 36.At the time of writing this judgment, the written submissions of the Respondent were not traceable on the court’s physical record and on the online portal. Analysis and Determination 37.This being a first appeal, the Court is enjoined to revisit, re-evaluate, and analyse the material that was placed before the Trial Court, together with the impugned Ruling, and thereafter draw its own independent conclusions. In doing so, the Court must bear in mind that it neither saw nor heard the parties and witnesses firsthand. This principle was reaffirmed in the case of Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. 38.Having reviewed the entire Record of Appeal, the parties’ respective submissions, and the applicable law, the Court finds that the following issues fall for determination: -a.Whether the learned Trial Magistrate erred in law and in fact in finding that an employment relationship existed between the Appellant and the Respondent; andb.Whether the learned Trial Magistrate erred in law in holding that the Respondent’s claim was not statute-barred under Section 89 of the Employment Act. Employment relationship? 39.It is the Appellant’s contention that the learned Trial Magistrate failed to properly appreciate the nature of the relationship between the parties. According to the Appellant, the Respondent was called to serve and propagate the Christian faith, a calling which did not give rise to an employer-employee relationship. 40.In line with that argument, the Appellant maintains that no contract of employment existed between the parties and describes the Respondent as a shepherd within the Church rather than an employee. It is on this basis that the Appellant has contended that the Trial Court lacked jurisdiction to hear and determine the matter. 41.The Respondent, on the other hand, asserts that he was an employee of the Appellant, contending that he received a regular salary and that the Appellant remitted statutory deductions on his behalf, including National Hospital Insurance Fund (NHIF) and National Social Security Fund (NSSF) contributions. 42.In support of his position, the Respondent annexed copies of his pay slips to his Replying Affidavit dated 16th June 2025. A review of the said pay slips reveals that the Respondent had been assigned an employee number and that his designation was indicated as “Clergy”. The pay slips further show that he received a regular basic salary together with responsibility allowance, hospitality allowance, and other employment-related benefits. 43.It is also evident from the said pay slips that the Appellant remitted the Respondent’s Pay As You Earn (PAYE) tax and NHIF contributions. In addition, the Appellant made pension contributions on the Respondent’s behalf, including the portion designated as the employer’s contribution. Further to this, the pay slips reflect the provision of a housing benefit as part of the Respondent’s remuneration package. 44.It is also worth noting that the suspension letter dated 24th May 2016 expressly provided that the Respondent would be entitled to half pay during the six-month suspension period. 45.Section 2 of the Employment Act defines an employee as “a person employed for wages or a salary and includes an apprentice and indentured learner.” 46.The International Labour Organization (ILO), in the Employment Relationship Recommendation, 2006 (No. 198), recognizes that difficulties may arise in determining the existence of an employment relationship, particularly where the rights and obligations of the parties are unclear, where the relationship has been disguised, or where gaps or limitations exist in the applicable legal framework or in its interpretation and application. 47.To address such challenges, ILO Recommendation No. 198 identifies a number of indicators that may assist in determining whether an employment relationship exists. Among the indicators highlighted are:a.the fact that the work is carried out according to the instructions and under the control of another party; involves the integration of the worker in the organization of the enterprise; is performed solely or mainly for the benefit of another person; must be carried out personally by the worker; is carried out within specific working hours or at a workplace specified or agreed by the party requesting the work; is of a particular duration and has a certain continuity; requires the worker's availability; or involves the provision of tools, materials and machinery by the party requesting the work;b.periodic payment of remuneration to the worker; the fact that such remuneration constitutes the worker's sole or principal source of income; provision of payment in kind, such as food, lodging or transport; recognition of entitlements such as weekly rest and annual holidays; payment by the party requesting the work for travel undertaken by the worker in order to carry out the work; or absence of financial risk for the worker. 48.Turning to the present case, it has been established from the record that the Respondent received a regular monthly salary together with various allowances, was assigned an employee number, had statutory deductions and pension contributions remitted on his behalf by the Appellant, received a housing benefit, and was issued with a pay slip for every month. 49.In the circumstances, and applying both the statutory definition of the term “employee” under the Employment Act and the indicators set out in ILO Recommendation No. 198, the Court is persuaded that the Respondent fell within the ambit of an employee. 50.Consequently, notwithstanding the Appellant’s characterization of the Respondent’s role as a spiritual calling, the Court is satisfied that the substance of the parties’ engagement bears the hallmarks of an employer-employee relationship. 51.Indeed, it is unclear why the Appellant would pay the Respondent a regular monthly salary and allowances, issue him with pay slips, assign him an employee number, remit statutory deductions and pension contributions on his behalf, give him a housing benefit, and provide for payment of half salary during the period of suspension if no employment relationship existed. 52.Taking all the foregoing factors into account, the Court finds that the relationship between the parties was one of employer and employee, notwithstanding the spiritual nature of the duties performed by the Respondent. 53.Accordingly, the Court finds no basis for interfering with the learned Trial Magistrate’s conclusion that an employment relationship existed between the Appellant and the Respondent. Statute-barred claims? 54.The Appellant has further challenged the learned Trial Magistrate’s finding that the Respondent’s claim was not statute-barred under Section 89 of the Employment Act. 55.According to the Appellant, the cause of action accrued upon the expiry of the six-month suspension period, specifically, 24th December 2016, and that under Section 89 of the Employment Act, the Respondent’s claim should have been instituted before 24th December 2019. 56.The record bears that the Respondent was suspended from duty by a letter dated 24th May 2016 for a period of six (6) months following his arraignment in court on allegations of defilement. The suspension letter expressly stated that the suspension was intended to allow the court process to run its course, upon the conclusion of which the Church would make a determination regarding his pastoral ministry within the Diocese. 57.It is not disputed that the criminal proceedings extended well beyond the six-month suspension period and were ultimately concluded on 27th November 2024 when the Respondent was acquitted of the charges. 58.It is equally evident that upon the lapse of the six-month suspension period, the Respondent was neither recalled to duty nor formally notified of the termination of his engagement. In effect, the suspension remained in force pending the determination of the criminal proceedings. 59.It is also discernible from the suspension letter that the Respondent’s fate and his resumption of duty in the diocese was hinged on the determination of the Court in the criminal case. 60.It therefore follows that the Respondent’s status and any decision regarding his resumption of duty were contingent upon the conclusion of the criminal proceedings. 61.In those circumstances, the Court respectfully disagrees with the Appellant’s contention that the cause of action accrued immediately upon the expiry of the six-month suspension period. The Court finds that the cause of action crystallized only upon the conclusion of the criminal case, when the basis upon which the suspension had been imposed was finally determined. 62.Given that the criminal proceedings were concluded on 27th November 2024 and that the suit before the Trial Court was filed on 30th May 2025, the Court is persuaded that the claim was instituted within the limitation period prescribed under Section 89 of the Employment Act. 63.Consequently, the Court finds no error in the learned Trial Magistrate’s conclusion that the Respondent’s claim was filed within the statutory time limits and was therefore not time-barred. Orders 64.Ultimately, the Court finds no basis upon which to interfere with the decision of the learned Trial Magistrate. Accordingly, the instant Appeal fails and is hereby dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED AT NYERI THIS 26TH DAY OF JUNE 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Appellant Ms. OnyangoFor the Respondent Mr. ChegeCourt Assistant NdatiORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court had been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE