[2021] KEELRC 1609 (KLR)
The court found that the claimants, as interns, fit within the definition of employees under the Employment Act, 2007, as the Act includes apprentices and indentured learners within the meaning of employee. The court further held that the existence of an employment relationship, when disputed, is a factual matter...
Source-derived case information.
- Citation
- [2021] KEELRC 1609 (KLR)
- Parties
- Applicant: Michael Ouma Odero on his own behalf and on behalf of 506 others; Respondent: Public Service Commission; Respondent: The Ministry of Health; Respondent: Kenya Nutritionists and Dieticians Institute
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 504 of 2018
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- B Ongaya
- Legal Topics
- Internship Status, Employment Relationship, Locus Standi, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Ouma Odero on his own behalf and on behalf of 506 others
Applicant
Public Service Commission
Respondent
The Ministry of Health
Respondent
Kenya Nutritionists and Dieticians Institute
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction where the existence of an employer-employee relationship is disputed.
- 2 Whether the claimants, as interns, qualify as employees under the Employment Act, 2007.
- 3 Whether the preliminary objection is properly raised on the basis of lack of employer-employee relationship and locus standi.
Ratio Decidendi
The court found that the claimants, as interns, fit within the definition of employees under the Employment Act, 2007, as the Act includes apprentices and indentured learners within the meaning of employee. The court further held that the existence of an employment relationship, when disputed, is a factual matter that requires hearing and evidence, and thus cannot be properly determined by way of a preliminary objection. Consequently, the preliminary objection raised by the 3rd respondent, which was premised on the alleged absence of an employer-employee relationship and lack of locus standi, was not a pure point of law and was therefore dismissed. The court directed the parties to...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the claimants.
- Parties to take steps towards expeditious hearing and determination of the main suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA
CAUSE NO. 504 OF 2018
MICHAEL OUMA ODERO ON HIS OWN BEHALF
AND ON BEHALF OF 506 OTHERS..............................................................CLAIMANTS
VERSUS
PUBLIC SERVICE COMMISSION................................................................1ST RESPONDENT
THE MINISTRY OF HEALTH.......................................................................2ND RESPONDENT
KENYA NUTRITIONISTS AND DIETICIANS INSTITUTE......................3RD RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 11th June, 2021)
RULING
The claimant filed the memorandum of claim on 06. 12. 2018 through Jackson Muchiri & Associates Advocates. At paragraph 5 of the memorandum of claim and as amended it is pleaded, “5. The claimant brings this claim on his behalf and on behalf of the other claimants which claim is for payment in arrears of internship stipend for the claimants who have successfully gone through the government sponsored internship programme but have not received their stipend which they are entitled to under the government internship policy for year 2017. The list of members who went through the internship program is attached to this claim.”
The 1st respondent is sued as the constitutional commission established under Article 233 of the Constitution and brought into operation under the Public Service Commission Act, 2017. The 2nd respondent is sued as the Government Ministry responsible for policy on nutrition and preventive health programmes and it supervises the 3rd respondent. The 3rd respondent is sued as established under section 4 of the Nutritionists and Dieticians Act, 2007 and its functions include, inter alia, involvement in the practical training of nutritionists and dieticians and in that regard, placing interns in various health facilities within the country to acquire practical training.
The 3rd respondent filed a notice of preliminary objection on 05. 10. 2020 through Professor Kiama Wangai & Company Advocates and prayed that the claim against the 3rd respondent and indeed the entire suit ought to be struck out with costs to the 3rd respondent upon the grounds:
a. That the Honourable Court lacks jurisdiction to entertain the claim as no employer – employee relationship exists between the claimant and the parties he purports to represent and the 3rd respondent herein.
b. That the claimant herein lacks locus standi to bring this claim on his own behalf and on behalf of 506 others.
It was submitted for the 3rd respondent that as pleaded there is no employer-employee relationship between the claimants and the 3rd respondent. It was further submitted that the preliminary objection was proper per Laws JA in Mukhisa Biscuit Manufacturing Co. Ltd –Versus- West End Distributors Ltd (1969) EA 696.
For the claimants it was submitted that section 2 of the Employment Act defines an employee to include an apprentice or indentured learner. Further the same section defines a contract of service to include a contract of apprenticeship and indentured learner-ship. It was submitted that the claimants being interns, their claim is by apprentices and learners from a government sponsored internship programme.
It is further submitted that the respondents herein have elaborate roles with respect to the internship programme in issue and as per provisions of the Public Service Commission Internship Policy and Guidelines for the Public Service, 2016.
The Court has considered the submissions. The Black’s Law Dictionary, 9th Edition at Page 1491 defines “indentured servant” as a servant who contracted to work without wages for a fixed period in exchange for some benefit, such as learning a trade or cancellation of a debt or paid passage to another country, and the promise of freedom when the contract period expires. The same Black’s Law Dictionary, 9th Edition at Page 117 defines “apprentice” as a person bound by an indenture to work for an employer for a specified period to learn a craft, trade or profession and, “2. A learner in any field of employment or business especially, one who learns by hands-on experience or technical on the-job training by one experienced in the field.”
The Court finds that the claimants as interns as pleaded amounted to employees and, again as pleaded, the relationship amounted to employment, within the meanings assigned under the Employment Act, 2007 and as submitted for the claimants. The Court further observes that the fact of employment when disputed like is done for the 3rd respondent would amount to a matter requiring a hearing and evidence to resolve and therefore not amounting to a proper issue to be raised as a preliminary objection.
In conclusion the preliminary objection is hereby dismissed with costs and parties to take steps towards the expeditious hearing and determination of the main suit.
Signed, dated and delivered by video-link and in court at Mombasa this Friday 11th June, 2021.
BYRAM ONGAYA
JUDGE