Clinical officer interns get Sh457m compensation for work minus pay
Clinical Interns participating in a demonstration at Uhuru Park grounds in Nairobi on July 6,2015 over what they claimed to be non-payment of their services by the government
The Employment and Labour Relations Court in Nairobi has ordered the government to pay Sh457 million to clinical officer interns who had worked for a year without any pay.
In the decision, the court directed the government to pay each of the 914 interns with overdue salaries, allowances, and damages for the infringement of their rights. “In the upshot judgment is hereby entered for the petitioners against the respondents jointly and severally, in the following terms; General damages, Sh500,0000 for each of the 914 Petitioners, for the violated rights.
Payment of entitled salaries and allowances that they ought to have earned,” Justice Ocharo Kebira said in an October 28, 2024 decision.
The case, brought by petitioner Mary Wanjiru Ndwiga, a clinical officer, on behalf of the clinical officer interns (diploma level) centred on unpaid salaries and allowances that were allegedly guaranteed under Kenya’s Revised Scheme of Service for Clinical Officers, 2010.
The interns were deployed to public hospitals across Kenya in early 2015 for mandatory one-year internships required by the Clinical Officers’ Act, but they reportedly received neither salaries nor allowances. This led to a series of petitions and a strike, which the interns ultimately suspended in hope of a court resolution.
In the petition, Ms Ndwiga alleged violations of numerous constitutional rights, including the right to fair remuneration, protection from discrimination, and fair administrative action.
The interns further told the court that while they provided their services, other categories of interns such as those at the degree level were receiving payments, rendering the ministry's actions discriminatory and unlawful.
In response, the Ministry of Health and the Attorney General contended that they had no legal employment relationship with the interns, asserting that the placements were for educational purposes and did not constitute employment.
According to their submissions, the ministry’s role was merely to facilitate internships, and it did not hold a contractual obligation to compensate interns.
They also argued that budget allocations did not cover diploma-level clinical officer interns during the relevant fiscal periods, and that authorisation to pay stipends for such interns only commenced in 2019.
They further added that health services had been devolved to county governments since 2013, meaning that any employment issues related to the interns should be addressed by the respective counties and not the national government.
Justice Kebira dismissed the government’s arguments, noting that the ministry's role went beyond mere facilitation as the interns were assigned specific duties and worked under the same conditions as employees.
“If indeed the role of the 1st respondent was merely facilitative, nothing could have been easier than the respondents who were asserting so, to refer the court to a policy and or law from which the alleged facilitative role flowed. They did not," the court said.
The court determined that the interns' designation under Job Group H as per the Scheme of Service qualified them as employees, making the ministry responsible for their wages.
The judge strongly criticised the ministry for failing to honour the court's previous order from September 2015, which had mandated the ministry to provide back pay and allowances to the interns.
Justice Kebira deemed the government’s refusal to comply as a deliberate attempt to obstruct justice.
The court found that the ministry’s actions infringed on several constitutional rights, including the interns’ rights to fair labour practices, protection from servitude and fair administrative action.
The judge stressed that forcing the interns to work without pay was equivalent to slavery and servitude and in breach of Article 30 of the Constitution. The unpaid labour and lack of explanation from the ministry also violated the interns’ right to dignity, reasonable working conditions and fair remuneration under Article 41.
The court ordered the Health ministry to pay each intern their entitled salary and allowances under Job Group H from January to December 2015.
