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Supreme CourtPartially AllowedPetition 36 of 2019

Gichuru v Package Insurance Brokers Ltd

Supreme Court of Kenya
22 October 2021
Philomena Mbete MwiluM. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
11,977 words in judgment
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The bottom line

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Supreme Court rules employers must accommodate disabled employees and follow fair procedure before dismissal.

What this practically means

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Simon Gitau Gichuru, an operations manager, became disabled after spinal surgery. His employer, Insurance Company of East Africa, told him to stay home because the office lacked facilities, ignored his doctor's clearance to return, and later fired him for gross incompetence without a hearing. The Supreme Court found this was indirect discrimination and unfair dismissal. It ordered the employer to pay Kshs 4,781,450 in damages, including compensation for discrimination and lost salary.

Executive summary

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The Supreme Court of Kenya partially allowed the appellant's appeal against the Court of Appeal's decision, which had set aside the trial court's finding of discrimination and reduced the compensation for unfair dismissal. The appellant, an operations manager who became physically disabled after spinal surgery, was suspended on medical grounds and later summarily dismissed for alleged gross incompetence. The Supreme Court held that the respondent indirectly discriminated against the appellant contrary to article 27(5) of the Constitution by failing to accommodate his disability, disregarding his doctor's recommendation that he could return to work, and treating him differently from other employees. The court emphasized that an employer has a duty to investigate the extent of an employee's incapacity and consider all alternatives short of dismissal, and that failure to provide reasonable accommodation such as ramps or flexible hours constitutes indirect discrimination. The court also found the termination procedurally unfair under sections 41 and 45 of the Employment Act because the appellant was not given a hearing before dismissal. On quantum, the court reduced the award for discrimination from Kshs 5,000,000 to Kshs 2,000,000, finding it inordinately high, but reinstated the trial court's award of 12 months' salary for unfair dismissal. The Court of Appeal's judgment was set aside, and judgment was entered for the appellant in the total sum of Kshs 4,781,450 with costs and interest.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant was treated by the respondent in a discriminatory manner on account of physical incapacity contrary to article 27(5) of the Constitution.
  2. 2.Whether the procedure for termination of employment was unlawful and unfair.
  3. 3.Whether the damages granted were excessive in the circumstances?
  4. 4.Who should bear the costs of the appeal?

Key legal issues

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01

Whether the appellant was discriminated against on account of physical incapacity contrary to article 27(5) of the Constitution.

Holding

The Supreme Court held that the respondent indirectly discriminated against the appellant by failing to accommodate his disability and by treating him differently from other employees, which amounted to indirect discrimination.

Reasoning

The court found that the respondent's actions—asking the appellant to stay home because the office lacked facilities, disregarding the medical report recommending his return to work, and eventually dismissing him for gross incompetence without investigating alternatives—constituted indirect discrimination. The respondent failed to demonstrate any undue hardship in accommodating the appellant, such as providing a ramp or flexible hours. The court distinguished between direct and indirect discrimination, noting that indirect discrimination occurs when a condition or requirement disproportionately disadvantages persons with a protected characteristic. The burden of proof shifted to the respondent under section 5(7) of the Employment Act, which the respondent failed to discharge.

p. 27
02

Whether the procedure for termination of employment was unlawful and unfair.

Holding

The Supreme Court held that the termination was unfair because the appellant was not accorded a hearing before dismissal, in breach of sections 41 and 45(2)(c) of the Employment Act.

Reasoning

The court noted that the respondent initially suspended the appellant on health grounds but later dismissed him for gross incompetence without any disciplinary hearing. The termination letter did not mention health but cited poor performance. The court emphasized that section 41 of the Employment Act requires an employer to explain the reasons for termination to the employee in a language they understand and to allow the employee to have a representative present. The contractual provision for summary dismissal could not override this statutory requirement. The court found that the respondent's failure to follow fair procedure rendered the dismissal unfair within the meaning of section 45 of the Act.

p. 27
03

Whether the damages granted were excessive in the circumstances.

Holding

The Supreme Court reduced the award for discrimination from Kshs 5,000,000 to Kshs 2,000,000, finding it inordinately high, but reinstated the trial court's award of 12 months' salary for unfair dismissal.

Reasoning

The court applied the principle that an appellate court will not disturb an award of damages unless it is inordinately low or high, or the trial court took into account irrelevant factors. While affirming the finding of discrimination, the court considered that the award of Kshs 5,000,000 was disproportionate and punitive. It reduced it to Kshs 2,000,000, which it deemed sufficient to compensate the appellant and deter employers. The court also reinstated the trial court's award of 12 months' salary for unfair dismissal, finding it appropriate given the circumstances, including the appellant's disability and reduced chances of securing alternative employment.

p. 30

Legal principles established

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  • Employers must reasonably accommodate employees with disabilities, such as providing ramps or flexible hours, unless it causes undue hardship.
  • Before dismissing an employee for incapacity due to illness or disability, the employer must investigate the extent of the incapacity and consider alternatives short of dismissal.
  • The mandatory hearing requirement under section 41 of the Employment Act cannot be overridden by a contract clause allowing summary dismissal.
  • Indirect discrimination occurs when a condition or requirement disproportionately disadvantages persons with a protected characteristic, like disability.
  • The burden of proof shifts to the employer under section 5(7) of the Employment Act to show no discrimination occurred.
  • An appellate court will not disturb a damages award unless it is inordinately high or low or based on irrelevant factors.

Court orders

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  1. 1.The petition of appeal dated September 2, 2019 partially succeeds.
  2. 2.The Judgment of the Court of Appeal dated July 19, 2019 is hereby set aside.
  3. 3.Judgment be and is hereby entered in the following terms: Damages for discrimination Kshs 2,000,000; 12 months’ salary in compensation Kshs 2,384,100; 1 Month’s salary in lieu of notice Kshs 198,675; Salary for July 2014 Kshs 198,675; Total Kshs 4,781,450.
  4. 4.Costs be awarded to the appellant.
  5. 5.The amounts awarded shall attract interest at court rates from the date of the trial court’s judgment until payment in full.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 307 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Award of Kshs 5,000,000 as damages for discrimination

The court found the award inordinately high and disproportionate, reducing it to Kshs 2,000,000.

p. 30

Costs

Costs be awarded to the appellant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We find that the respondent failed to demonstrate that there would have been any undue hardship they would have incurred if they chose to reasonably accommodate the needs of the employee by providing amenities such as a ramp to ease the appellant’s movement, or even providing flexible working hours.
p. 27 Duty to Accommodate Disability
the procedure followed to terminate the contract was in breach of section 41 and 45 2(c) of the Employment Act for the reason that the appellant was not accorded a chance to defend himself or respond to the allegations against him.
p. 27 Unfair Termination Procedure
it is our considered view that the award of Kshs 5,000,000 was inordinately high and disproportionate in this instance.
p. 30 Excessive Damages for Discrimination

Key timeline

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Before 2014
Simon Gitau Gichuru employed as Operations Manager at Insurance Company of East Africa.
2014-07
Appellant undergoes spinal surgery and becomes physically disabled.
2014-07
Employer suspends appellant on medical grounds, asks him to stay home due to lack of office facilities.
2014-07
Employer summarily dismisses appellant for alleged gross incompetence without a hearing.
2019-07-19
Court of Appeal sets aside trial court's finding of discrimination and reduces compensation.
2019-09-02
Appellant files petition of appeal to the Supreme Court.
2021
Supreme Court partially allows appeal, reinstates discrimination finding and adjusts damages.

Practical implications

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For lawyers

Duty to accommodate and procedural fairness

When representing employers, ensure they investigate incapacity thoroughly and consider all alternatives before dismissal. A contract clause for summary dismissal does not bypass section 41 of the Employment Act. For employees, argue that failure to provide reasonable accommodation (e.g., ramps, flexible hours) constitutes indirect discrimination, shifting the burden to the employer under section 5(7).

For businesses

Reasonable accommodation is a legal duty

You must actively accommodate disabled employees by providing facilities like ramps or flexible working hours, unless you can prove undue hardship. Before terminating an employee for incapacity, investigate the extent of the disability and consider alternatives. Failing to do so exposes you to claims of discrimination and unfair dismissal, with damages including compensation and lost salary.

For individuals

Know your rights as a disabled employee

If you become disabled, your employer must try to accommodate you—for example, by modifying the workplace or hours. They cannot dismiss you without a proper hearing and without exploring other options. If they do, you may claim indirect discrimination and unfair dismissal. The Supreme Court awarded Kshs 2,000,000 for discrimination and 12 months' salary in this case.

Frequently asked questions

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Can an employer fire a disabled employee in Kenya without providing accommodation?+

No. The Supreme Court in Simon Gitau Gichuru v. Insurance Company of East Africa held that employers must reasonably accommodate disabled employees, such as by providing ramps or flexible hours, unless it causes undue hardship. Firing without accommodation or a fair hearing is indirect discrimination and unfair dismissal.

What is indirect discrimination in Kenya employment law?+

Indirect discrimination occurs when an employer applies a condition or requirement that disproportionately disadvantages people with a protected characteristic, like disability. In this case, failing to provide a ramp or flexible hours for a disabled employee was indirect discrimination. The employer must prove no undue hardship to avoid liability.

What damages can I get for unfair dismissal in Kenya?+

You can claim compensation for lost salary (up to 12 months' pay), damages for discrimination (e.g., Kshs 2,000,000 in this case), salary in lieu of notice, and any unpaid wages. The court may also award interest and costs. The amount depends on the circumstances, including your disability and chances of finding new work.

Does an employer have to provide a ramp for disabled employees in Kenya?+

Yes, if it is a reasonable accommodation. The Supreme Court stated that providing a ramp or flexible working hours are examples of reasonable accommodation. The employer must show that doing so would cause undue hardship to avoid this duty. Failure to provide such accommodation can amount to indirect discrimination.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gichuru v Package Insurance Brokers Ltd", Case Analysis (2021). Petition 36 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/12/eng@2021-10-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.