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ELRCAllowedCause as filed 26.07.2011 (Industrial Cause, Nakuru)· [2013] KEELRC 418 (KLR)

HOSEA CHERUIYOT MARU V MOI TEACHING AND REFERRAL HOSPITAL [2013] KEELRC 418 (KLR)

Industrial Court of Kenya
22 March 2013
BOByram Ongaya
2,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan hospital's dismissal of an employee was void because the acting director had no written delegation of disciplinary powers, earning the employee reinstatement and six years' back pay.

What this practically means

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Executive summary

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The claimant, an administrator employed by the respondent on 20.03.2003, was summarily dismissed with effect from 29.06.2007 by the acting managing director, Dr. Omar Aly, on allegations that he participated in an illegal staff procession on 26.06.2007. He appealed to the Chairman of the Board, who upheld the dismissal. The claimant sued for a declaration that the termination was unlawful, reinstatement without loss of salary or allowances, payment of lost dues, and costs. The court framed three issues: whether the acting director could validly exercise delegated authority without written delegation; whether the dismissal was unlawful and unfair; and entitlement to remedies. The court found no evidence of delegation of disciplinary powers to the acting director and held the proceedings null and void ab initio, further holding that persons acting under powers vested in another office must sign in the name of that office. It also found the respondent failed to prove the claimant's participation in the procession, and that neither section 41 notice and hearing requirements nor the agreed disciplinary procedure were met; a final warning did not oust those requirements. Given Article 236's protection of public officers, the court ordered reinstatement from 29.06.2007 with reporting date 1.04.2013, and full remuneration of Ksh.2,801,331 (69 months at Ksh.40,599 gross pay) plus interest, with the director and Board members severally and jointly responsible for implementation, and costs to the claimant.

Key legal issues

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01

Delegated authority to discipline

Holding

The acting director enjoyed no delegated powers; the disciplinary proceedings were null and void ab initio

Reasoning

The Terms and Conditions of Service allowed the Director to delegate but did not prescribe the mode. The court found the power discretionary and held prudence demands delegation in writing. No evidence of delegation was offered, and the acting director signed correspondence in his individual capacity rather than for the office of the director, shifting the discretion to act and rendering the proceedings void from the start.

p. 3
02

Reason for dismissal under section 43

Holding

The respondent failed to prove the claimant participated in the procession

Reasoning

The respondent did not rebut the claimant's testimony that he did not take part in the protest and had not been surcharged, hence had no grievance to warrant participation. Without proof of the alleged misconduct, no valid reason for dismissal under section 43 of the Employment Act was established.

p. 3
03

Notice and hearing under section 41

Holding

Dismissal without notice and hearing was unlawful and unfair despite the final warning and the appeal decision

Reasoning

The court held that a final warning did not oust the disciplinary process requiring notice and hearing. Relying on its earlier Shankar Saklani decision, only daily-wage contracts may be terminated without notice; gross misconduct entitles the employer only to serve a shorter notice. The Chairman's determination of the appeal could not cure the absence of due process.

p. 4
04

Remedies - reinstatement and pay

Holding

Reinstatement with full back remuneration of Ksh.2,801,331 for 69 months granted

Reasoning

The respondent, a public body, is bound by Article 236 of the Constitution which protects public officers from dismissal without due process. Reinstatement serves that protection, and consequential to reinstatement the claimant is entitled to full remuneration for the period away from work, calculated at his last gross pay of Ksh.40,599 per month for 69 months.

p. 4

Legal principles established

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  • Persons discharging duties and powers vested in another office must sign documents for and in the name of the office vested with those powers, failing which the action is null and void
  • Except for daily-wage contracts, an employer must serve notice and accord a hearing before summary dismissal; gross misconduct only justifies a shorter notice, not dispensation with notice and hearing
  • A final warning is a preliminary process and does not oust the statutory and contractual disciplinary process of notice and hearing
  • An employee unlawfully or unfairly dismissed is entitled to reinstatement and full remuneration for the period kept away from work

Court orders

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  1. 1.a declaration that the termination of the claimant was unlawful and illegal from the very beginning
  2. 2.the claimant is reinstated in the employment of the respondent with effect from 29.06.2007 and to report for assignment of duties with effect from 1.04.2013
  3. 3.the respondent to pay the claimant a sum of Ksh.2,801,331 plus interest at court rates from the date of the judgment till full payment
  4. 4.the respondent's director and Board members are severally and jointly responsible for implementation of the decision
  5. 5.the respondent to pay costs of the cause

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 35, including Section 35(1)(a)
  • Employment Act, 2007Section 44(1)
  • Employment Act, 2007Subsection 49(4)(f)
  • Constitution of Kenya, 2010Article 236
  • Constitution of Kenya, 2010Sub-Article 41(1)
  • Moi Teaching and Referral Hospital Terms and Conditions of ServiceClause 1.8 (Delegation); Section 16.5.1(10); clause 16.7.4; clause 16.10.4; Part VIII

Cases cited (4)

  • Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers –Versus- Moi Teaching and Referral Hospital
    Industrial Court Award in Cause No. 570N of 2009
  • Shankar Saklani -Versus- DHL Global Forwarding (K) Limited
    Industrial Court Cause No. 562 of 2012 at Nairobi
  • Kenya Union of Printing, Publishing, Paper Manufacturing and Allied Workers – Versus – Timber Treatment International
    Industrial Court Cause No. 12 of 2012 at Nakuru
  • Grace Gacheri Muriithi –Versus- Kenya Literature Bureau
    (2012) eKLR; Industrial Cause No. 44 of 2011 at Nairobi
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007 and Article 236 of the Constitution; Industrial Court first-instance jurisdiction

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, "HOSEA CHERUIYOT MARU V MOI TEACHING AND REFERRAL HOSPITAL [2013] KEELRC 418 (KLR)", Case Analysis (2013). Cause as filed 26.07.2011 (Industrial Cause, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/418/eng@2013-03-22

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