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Court of AppealPartially AllowedCivil Appeal No. 62 of 2019

Pandya Memorial Hospital v Geeta Joshi [2020] KECA 65 (KLR)

Court of Appeal
18 December 2020
5,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that retiring only female staff at 55 is gender discrimination, but reduced the employee's award after finding overlapping compensation excessive.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Nambuye, Okwengu & Musinga, JJ.A.) partially allowed an appeal by Pandya Memorial Hospital against an ELRC judgment awarding Geeta Joshi Kshs.5,915,437 after she was retired at age 55 under a policy applicable only to female staff. The Court rejected the appellant's grounds on the right to a fair trial, holding that a party who consents to a hearing date and then fails, with its witnesses and counsel, to attend without disclosed reasons, waives the constitutional right to be heard; adjournments must be grounded on clear, compelling and legally convincing reasons, and flimsy requests amount to abuse of judicial discretion. The Court affirmed the trial judge's finding that retiring female staff at 55 was discriminatory, breaching Article 27 of the Constitution and section 5 of the Employment Act, the employer having failed to discharge the statutory burden of disproving discrimination. However, the Court held that awarding both damages for discrimination and 12 months' salary compensation for unfair termination amounted to double compensation and set aside the compensation award. Finding the Kshs.5,000,000 discrimination award excessive because the trial judge failed to account for the respondent's actual lost earnings of Kshs.2,607,000, the Court substituted Kshs.3,000,000. It also set aside Kshs.354,037 awarded as final dues that were neither pleaded nor proved, reiterating that parties are bound by their pleadings. The Kshs.40,000 superintendence allowance was left undisturbed absent a cross-appeal. Interest was awarded at court rates, with each party bearing its own costs of the appeal.

Key legal issues

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01

Right to be heard and adjournment discretion

Holding

The trial judge did not deny the appellant a fair trial; the appellant waived its right to be heard by failing to attend or offer its defence on multiple occasions without disclosed reasons.

Reasoning

The hearing dates had been fixed by consent. Counsel holding brief gave no reason for the absence of the lead counsel or the appellant's witnesses, who were notified and whose hospital was minutes from court. The constitutional right to be heard is not absolute and may be waived expressly or by conduct. The elements governing adjournments (adequacy of reasons, prejudice, costs compensation, conduct of parties) were not satisfied, so the discretion was properly exercised.

p. 4
02

Discriminatory retirement policy

Holding

Retiring the respondent at 55 under a policy applicable only to female staff was unfair and discriminatory, contravening Article 27 of the Constitution and section 5 of the Employment Act.

Reasoning

The retirement notice expressly stated the retirement age for female staff was 55, implying male staff had a different retirement age. The employer bears the statutory burden of proving no discrimination occurred, and the appellant did not disprove the respondent's allegations. The trial court's finding was affirmed and ground 5 of the appeal dismissed.

p. 5
03

Double compensation for constitutional and statutory violations

Holding

Awarding damages for discrimination alongside 12 months' salary compensation in this case amounted to double compensation; the 12-month award was set aside in full.

Reasoning

While courts do not encourage multiple remedies for the same wrongdoing, compensatory damages may be awarded outside section 49 for serious constitutional violations. However, in this case the compensation for unfair termination duplicated damages for discrimination, since the respondent would have earned only Kshs.2,607,000 over the lost five years, yet received Kshs.5,000,000 for discrimination plus a further 12 months' salary.

p. 6
04

Excessive damages for discrimination

Holding

The award of Kshs.5,000,000 for discrimination was excessive because the trial judge failed to consider that the respondent's lost earnings would have been Kshs.2,607,000; it was reduced to Kshs.3,000,000.

Reasoning

An appellate court may interfere where the trial court failed to take into account a relevant factor and thereby arrived at an erroneous estimate. Had the judge considered that the respondent would have worked a maximum of five more years earning Kshs.2,607,000, she would have reduced the award. The Court substituted Kshs.3,000,000 for discrimination and unfair labour practice.

p. 6
05

Award of unpleaded final dues

Holding

The award of Kshs.354,037 as final dues was made without any plea, prayer or testimony supporting it, and was set aside.

Reasoning

Parties are bound by their pleadings and a court cannot award what has neither been pleaded nor proved, especially special damages. The figure was traced to an indemnity form attached to a cheque from the appellant's documents, which were never produced in evidence because the appellant's witness did not testify. The respondent neither prayed for nor testified about the amount; the appellant's payment of it could not validate an unpleaded award.

p. 7
06

Superintendent allowance of Kshs.40,000

Holding

The award of Kshs.40,000 for laboratory superintendence was left undisturbed since the appellant filed no cross-appeal.

Reasoning

Although paragraph 30 of the trial judgment appeared to point to a higher sum, in the absence of a cross-appeal the Court could not interfere with the amount awarded. This reflects the principle that a first appellate court confines itself to the appeal as framed.

p. 7

Legal principles established

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  • Where parties fix a hearing date by consent and a party and its advocate fail to attend court for undisclosed reasons, the party is deemed to have waived the constitutional right to be heard; the trial court cannot be faulted for proceeding.
  • Applications for adjournment must be grounded on clear, logical, compelling and legally convincing reasons; granting unmerited adjournments on flimsy grounds is an abuse of judicial discretion.
  • An employer bears the burden of proving that discrimination did not take place as alleged under section 5(7) of the Employment Act; a policy retiring only female staff at 55 is discriminatory.
  • A serious constitutional violation leading to unfair loss of employment may attract compensatory damages outside section 49 of the Employment Act, so constitutional and statutory awards are not automatically double compensation.
  • 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 or failed to consider relevant factors and thereby arrived at an erroneous estimate.
  • Parties are bound by their pleadings and a court cannot award what has neither been pleaded nor proved, particularly a claim for special damage.
  • An appellate court will not interfere with an exercise of judicial discretion absent proof it was exercised injudiciously.

Court orders

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  1. 1.Grounds 1, 2, 3 and 5 of the appeal rejected/dismissed
  2. 2.Award of Kshs.521,400 (12 months' salary compensation for unfair termination) set aside in its entirety as double compensation
  3. 3.Award of Kshs.5,000,000 for discrimination set aside and substituted with Kshs.3,000,000 for discrimination and unfair labour practice
  4. 4.Award of Kshs.354,037 as final dues set aside
  5. 5.Award of Kshs.40,000 for Laboratory Superintendent allowance left undisturbed
  6. 6.Amounts awarded to attract interest at court rates from the date of the trial court's judgment until payment in full
  7. 7.Each party to bear its own costs of the appeal
On appeal from
Employment and Labour Relations Court of Kenya at Mombasa
E.L.R.C Cause No. 190 of 2016
Jurisdiction invoked
First appellate jurisdiction over appeals from the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pandya Memorial Hospital v Geeta Joshi [2020] KECA 65 (KLR)", Case Analysis (2020). Civil Appeal No. 62 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/65/eng@2020-12-18

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