James Mukuha Gichane v National Hospital Insurance Fund & 3 others [2017] KECA 728 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot sue for wrongful dismissal as a human rights violation; such disputes belong in labour and civil courts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court evaluated the evidence properly
- 2.Whether the appellant established that his fundamental rights, as alleged, were violated and if so what relief was available
Key legal issues
#Whether termination of employment amounts to deprivation of property under section 75 of the repealed Constitution
It does not; employment does not fall within the meaning of 'property' under that section
The court adopted the dictionary meaning of property as tangible things over which rights of possession, use and enjoyment are exercised, noting intangible property such as trademarks and patents may qualify, but employment does not come within the section's amplitude. Following the High Court in A. Mbogholi Musagha, an office or employment confers no proprietary interest in the sense of a physical object. Accordingly, no breach of section 75 could arise from termination.
Whether an employment dispute can be prosecuted as a fundamental rights violation under section 84 of the repealed Constitution
No; an ordinary contractual/labour dispute must be pursued in the ordinary civil or labour courts, and a constitutional application on such facts is an abuse of process
The court held that the appellant's grievance related solely to the lawfulness of termination of employment. It endorsed the High Court's view that the framers of section 84 could not have intended constitutional provisions to replace ordinary contract law, and that constitutional remedies are only for actual or threatened violation of fundamental rights. Allegations of rights breach here were contrived and unsupported by evidence.
Duties of the Court of Appeal on a first appeal
The court re-appraises the evidence and draws its own inferences of fact, making due allowance for not having seen or heard the witnesses
Applying Selle v Associated Motor Boat Co, the court restated the first-appeal standard: it is enjoined to consider the evidence adduced, evaluate it and draw its own conclusions, while bearing in mind it has neither seen nor heard the witnesses. On that re-appraisal it found the High Court had correctly evaluated the evidence and reached the right conclusion.
Legal principles established
#- Employment is not 'property' within the meaning of section 75 of the repealed Constitution, so termination of employment cannot ground a claim of deprivation of property
- Ordinary tortious and contractual rights between employer and employee do not, without more, constitute breaches of fundamental rights enforceable by constitutional petition
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1150 of 2005
- Jurisdiction invoked
- First appeal from the High Court exercising original jurisdiction (fundamental rights claim under section 84 of the repealed Constitution); no specific appellate provision is cited in the judgment
Relief refused
#Damages for alleged breach of fundamental rights (including claimed sum of about Shs.10 million)
No breach of fundamental rights was proved; the grievance was an ordinary contractual/labour dispute
Declarations and orders requiring investigations under section 77 of the repealed Constitution
The constitutional route was misplaced as the claim concerned termination of employment
Costs
Appeal dismissed with costs to the respondents (the High Court had dismissed the application with each party bearing their own costs)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
No matter how broadly the scope of fundamental rights is interpreted, it cannot encompass ordinary tortious and contractual rights between individuals that do not bear on human or fundamental rights.
It seems that section 77 did not allude to forms of property that were intangible and clearly employment did not come within the amplitude of the term property under the section.
We see no merit in the appeal. We uphold the decision of the High Court and dismiss the appellant’s appeal with costs to the respondent.
Issues in the judgment
#The coram and the description of the decision below state the judges in inconsistent order ('Wendoh & Emukule J' in the header, 'Emukule & Wendoh, JJ' in the body)
The 5th respondent (Constable Sawe) is named in the narrative but omitted from the title/heading and the panel of parties
Apparent typographical error referring to 'the 1st appellant' where the 1st respondent is meant
Written submissions were said to have been filed on 3rd July 2015 while the judgment is dated 3rd March 2017, an unexplained chronological inconsistency in the record narration
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.
- Kamunyu v Ndegwa & 2 others (Employment and Labour Relations Petition E013 of 2025) [2025] KEELRC 2914 (KLR)[2025] KEELRC 2914 (KLR)22 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "James Mukuha Gichane v National Hospital Insurance Fund & 3 others [2017] KECA 728 (KLR)", Case Analysis (2017). Civil Appeal No. 215 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/728/eng@2017-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.