Hema Hospital v Dr. Wilson Makongo Marwa
The bottom line
#Kenya's Court of Appeal confirmed a doctor was unfairly fired, but slashed his payout from over KSh 4 million to KSh 465,000 because awards must be justified with reasons.
What this practically means
#Executive summary
#Key legal issues
#Whether the finding of verbal, unfair dismissal was supported by evidence
Yes. The trial judge was entitled to prefer the doctor's evidence, particularly as the hospital did not call Dr. Manduku who had firsthand knowledge of the dismissal.
The court, reviewing evidence as a first appellate court, found the hospital's account unconvincing. Simiyu's written statement omitted the critical events of 6 May 2013, Dr. Manduku was not called despite being the key witness, no salary was paid after 7 May 2013, and no notice or hearing preceded the termination. The failure to follow section 41 procedural requirements rendered the dismissal procedurally unfair.
Whether the award of service/severance pay of Kshs. 1,085,000.00 was justified
No. The award was set aside; no basis for either severance or service pay was established.
The judge mislabeled a claim for severance pay as service pay. Severance pay under section 40(g) arises only on redundancy, which was never the doctor's case. Service pay under section 35(5) requires proof of entitlement, and section 35(6) excludes it for members of pension, gratuity or NSSF schemes, on which no evidence was led.
Whether compensation of 12 months' salary for unfair termination was properly awarded
No. Reduced to three months' gross salary in the peculiar circumstances of the case.
Section 49(4) requires the court to consider factors such as length of service, mitigation, and the employee's prospects of comparable employment. The doctor was a qualified, practising professional, had served just over six years, and there was no evidence of mistreatment. Remedies must be proportionate to economic injury and not punitive or enriching.
Whether the trial judge exercised her discretion judiciously in granting the reliefs
No. She failed to give reasons for the awards and adopted counsel's submissions wholesale.
The discretion under section 49 must be exercised judiciously with regard to section 49(4) factors. The judge gave no reasons for awarding service pay, its rate, or pegging compensation at 12 months. Absent explanation, the court concluded she simply adopted the doctor's submissions without question, warranting appellate interference.
Legal principles established
#- A court awarding reliefs under section 49 of the Employment Act must give reasons or state the factors it has taken into consideration for the awards it makes
- There is a distinction between 'service pay' under section 35(5) of the Employment Act and 'severance pay' under section 40(g), which is payable only in the event of redundancy
- An appellate court will interfere with the exercise of judicial discretion under section 49 only where the lower court's decision is clearly wrong, as stated in Mbogo v Shah
- An employer must notify and hear an employee before termination on grounds of misconduct, poor performance or physical incapacity, as required by section 41 of the Employment Act
Court orders
#- 1.Set aside the award of Kshs. 1,085,000.00 for service pay
- 2.Set aside the award of Kshs. 3,136,167.00 in its entirety and substitute therefor an award of Kshs. 465,000.00 being the equivalent of three months' gross salary
- 3.The doctor to have costs of the lower court case and of this appeal
- On appeal from
- Industrial Court of Kenya at Kisumu
- Cause No. 256 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Industrial Court (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dr. Kennedy Amuhaya Manyonyi v African Medical and Research Foundation[2026] KECA 101 (KLR)23 Jan 2026
Cite this brief
#Cite this brief
Caselaw, "Hema Hospital v Dr. Wilson Makongo Marwa", Case Analysis (2015). Civil Appeal No. 72 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/190/eng@2015-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.