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Court of AppealDismissedCivil Appeal No 57 of 2019· [2023] KECA 652 (KLR)

Moi Teaching & Referral Hospital Board v Onditi (Civil Appeal 57 of 2019) [2023] KECA 652 (KLR)

Court of Appeal of Kenya
26 May 2023
2,765 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Even non-employees must be given a fair hearing before adverse action, and skipping that step makes the decision void.

What this practically means

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Executive summary

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This was a second appeal by Moi Teaching and Referral Hospital against a High Court decision which had declared null and void a notice dated December 6, 2004 barring Dr. Elias Onditi, a senior lecturer at Moi University who offered honorary clinical services at the hospital, from accessing its facilities. The respondent, though not the hospital's employee, was required under Legal Notice No. 78 of 1998 and a letter dated June 14, 1990 to provide clinical services there. The trial Magistrate's Court had found in favour of the hospital; the High Court reversed, holding the notice violated the rules of natural justice. Before the Court of Appeal, the appellant abandoned its grounds of appeal on fact, leaving only whether the notice was issued in accordance with the law. The Court held that although the hospital had statutory mandate to take disciplinary action under the Legal Notice, it failed to accord the respondent an opportunity to be heard before issuing the notice. The rules of natural justice, which predate the 2010 Constitution and the Fair Administrative Action Act, required that a person be heard before adverse action is taken against him, and a decision taken in breach is null and void even if the same outcome would have been reached. The repealed employment legislation did not apply since there was no employer-employee relationship. The Court of Appeal dismissed the appeal, affirming the High Court decision, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the notice barring the respondent was issued in accordance with the law

Holding

The notice was null and void because the appellant failed to accord the respondent a hearing before issuing it

Reasoning

It was common ground that the respondent was not the appellant's employee but a Moi University lecturer required to provide clinical services at the hospital under Legal Notice No. 78 of 1998. Although the appellant had statutory mandate to take disciplinary action, it alleged absenteeism without giving the respondent an opportunity to answer the allegations. The audi alteram partem rule required prior notification and a chance to be heard before adverse action. The absence of a hearing rendered the notice null and void, irrespective of the merits of the absenteeism allegation.

p. 4
02

Whether the repealed employment legislation and constitutional provisions invoked applied

Holding

Neither the Constitution of Kenya 2010, the Fair Administrative Action Act 2015, nor the repealed Trade Dispute Act and Employment Act applied, because the cause of action arose in 2004 and there was no employer-employee relationship

Reasoning

Counsel for the appellant properly conceded that the 2010 Constitution and the Fair Administrative Action Act are not retrospective. The repealed employment legislation applied only to employer-employee relationships, and the parties agreed no such relationship existed between the appellant and the respondent. Accordingly, the authorities cited on employment disputes were not relevant. The rules of natural justice, however, applied independently as part of the common law.

p. 4
03

Scope of this Court's jurisdiction on second appeal

Holding

The Court's remit on second appeal is limited to matters of law

Reasoning

Counsel for the appellant abandoned the grounds of appeal in the memorandum as they raised matters of fact outside the remit of the Court on a second appeal. The Court endorsed the settled position that it confines itself to matters of law unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and must not delve into matters of fact
  • The rules of natural justice apply to administrative action affecting a person even outside an employer-employee relationship, and predate the 2010 Constitution
  • A decision taken in breach of the rules of natural justice is null and void notwithstanding that the same decision might otherwise have been reached
  • A person is entitled to notice and a hearing before adverse action is taken against him

Court orders

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  1. 1.Dismissal of the appellant's appeal
  2. 2.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Legal Notice No. 78 of 1998Clause 6(b); clause 5(3)
  • Constitution of Kenya 2010Article 47(1)
  • Fair Administrative Action Act No. 4 of 2015Section 4
  • Trade Dispute Act, Cap 234 (repealed)Not specified
  • Employment Act, Cap 226 (repealed)Section 17
  • Halsbury's Laws of England, 5th Edition Vol. 61Page 545 para 640

Cases cited (9)

  • Litha Malimba v Sun International Management Limited and others
    JR1594/18(2021)
  • Moi Teaching and Reffereal Hospital v James Kipkonga Kendagor
    [2019] eKLR
  • Judge of the High Court and another v Ng'uni
    (2007) 2 EACA 201
  • The State (Irish Pharmaceutical Union) v Employment Appeal Tribunal
    (1987) ILRM 36
  • Republic v National Land Commission & 2 others ex parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West)
    [2018] eKLR
  • County Government of Nyeri & another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • Kenya Breweries Limited v Godfrey Odoyo
    [2010] eKLR
  • Stanley N. Muriithi & another v Bernard Munene Ithiga
    [2016] eKLR
  • Onyango Oloo v Attorney General
    [1986-1989] EA 456
On appeal from
High Court
Not stated
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable appellate statute, confined to matters of law

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, "Moi Teaching & Referral Hospital Board v Onditi (Civil Appeal 57 of 2019) [2023] KECA 652 (KLR)", Case Analysis (2023). Civil Appeal No 57 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/652/eng@2023-05-26

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