Moi Teaching & Referral Hospital Board v Onditi (Civil Appeal 57 of 2019) [2023] KECA 652 (KLR)
The bottom line
#Even non-employees must be given a fair hearing before adverse action, and skipping that step makes the decision void.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice barring the respondent was issued in accordance with the law
The notice was null and void because the appellant failed to accord the respondent a hearing before issuing it
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.
Whether the repealed employment legislation and constitutional provisions invoked applied
Neither the Constitution of Kenya 2010, the Fair Administrative Action Act 2015, nor the repealed Trade Dispute Act and Employment Act applied, because the cause of action arose in 2004 and there was no employer-employee relationship
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 The repealed employment legislation applied only to employer-employee relationships, and the parties agreed no such relationship existed between the appellant and the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.
Scope of this Court's jurisdiction on second appeal
The Court's remit on second appeal is limited to matters of law
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.
Legal principles established
#- 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
#- 1.Dismissal of the appellant's appeal
- 2.Each party to bear its own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.