Court dismisses Tenwek Hospital's bid to recover Sh7.4m from doctor

Tenwek Mission Hospital has failed in its bid to recover Sh7.4 million in training costs from Dr Ian Orwa, who trained at their facility.

The hospital had taken Orwa to court, seeking repayment after he failed to work for them as per their agreement post-training.

Tenwek Mission Hospital provides training and development to doctors who wish to further their education and specialise in surgery.

It is a member of the Pan African Academy of Christian Surgeons (Paacs), which promotes the training of African surgeons, and the College of Surgeons of Eastern, Central, and Southern Africa (Cosesca), an international organisation overseeing surgical training in Africa.

Orwa graduated with a bachelor's degree in Medicine and Surgery from Kenyatta University on December 20, 2013.

On August 14, 2014, he applied for training at PAACS based in North Carolina, USA.

Since Paacs does not have hospitals in Kenya, they coordinate with local hospitals, and Orwa joined Tenwek for an orthopaedic surgery residency programme scheduled to run for five years.

Tenwek claimed that Orwa agreed to a bond, requiring him to resign from other engagements and concentrate on his training.

The hospital provided him with a monthly stipend and covered his training costs.

The bond was executed on January 7, 2015, and he initially received a salary of Sh88,000 with a Sh10,000 commuter allowance, which increased to Sh172,300 by 2019.

The hospital argued that the agreement required Orwa to serve Tenwek for five years or refund the money spent on his training, totalling Sh7.4 million, with interest at commercial bank rates.

However, Justice David Nderitu of the Employment and Labour Relations Court found that Tenwek had not accurately calculated the total training cost.

Tenwek claimed that Orwa refused to engage with them and did not repay the money.

A payroll officer testified that Orwa owed Sh7.4 million but contradicted herself by calling the payments a stipend, not a salary.

Orwa’s supervisor testified that the bond agreement was clearly explained and that Tenwek paid for Orwa's practicing license.

According to the hospital, after completing his training, Orwa was offered a job at Tenwek but declined.

Justice Nderitu noted that if Orwa was indeed Tenwek’s employee, an offer letter would not have been necessary. 

Tenwek claimed Orwa went to work at Kaimosi Hospital, which is not affiliated with Tenwek, Paacs, or Cosesca.

In his defense, Orwa argued that his training costs were covered by Paacs through Tenwek, not by the facility itself.

He denied executing the bond agreement as alleged and claimed that Paacs Director Amanda McCoy authorised him to join Jumuia Friends Hospital Kaimosi, thus he did not breach the bond agreement.

Orwa also stated that Tenwek's conditions for employment, including a compulsory HIV test and joining the African Gospel Church, were intrusive, restrictive, undesirable, discriminatory, unconstitutional, and unlawful.

He claimed these conditions were not disclosed when he commenced his training.

He asserted that the money he received was a salary for services rendered during his training, paid by Paacs, and any refund should go to Paacs, not Tenwek.

Orwa argued that he had already worked for five years during his training, fulfilling any bond requirement.

He described Tenwek’s claim as fraudulent, alleging it sought to impose a nonexistent contract and subject him to forced labour.

Justice Nderitu ruled that Tenwek's role in Orwa's training was merely facilitative and that they had no legal basis to claim the money.

He stated that it would be unfair, unjust, and illegal for the court to order a refund of money paid as salary.

“In my considered view, what the claimant attempted to do was to force the respondent to work for it in restraint of trade, which is illegal,” the Judge concluded.