Josephat Mukhwana Waswa v Moi Teaching & Referral Hospital [2015] KEELRC 807 (KLR)
The bottom line
#A Kenyan court upheld a hospital worker's dismissal as fair but ordered his employer to pay wages owed for his suspension period.
What this practically means
#Executive summary
#Key legal issues
#Whether the suspension was lawful
Suspension was lawful as it rested on the contractual Terms and Conditions of Service and some allegations, if proved, would be criminal offences
Clause 16.11.2 of the Terms and Conditions of Service Booklet permitted suspension where an employee had committed a criminal offence pending determination of the case. The allegations of abuse of office and corrupt practices would amount to criminal offences if proved, and the clause did not require proof in a court before suspension. The objection that an Acting Director ordered the suspension was rejected as interference with managerial prerogative.
Whether the summary dismissal was procedurally fair
Procedurally fair - the Respondent complied with the statutory minimum protections under section 41
The Claimant was informed of the four allegations, given 7 days to respond and did so, attended a face-to-face hearing where he made representations and was cross-examined. The adjourned hearing date was communicated by telephone through an internal memo, two union representatives were present, and the Claimant failed to attend for unexplained reasons.
Whether the summary dismissal was substantively fair
Substantively fair - the Claimant admitted the charges in his responses
Section 43 places the burden on the employer to prove reasons for dismissal. The Claimant's written response and appeal letter confessed his role in the scam, appealing only for leniency without contending coercion. On the confession, the court concluded the dismissal was grounded on fair and valid reasons, and the refusal of clemency could not be faulted.
Remedies
Entitled to wages during suspension of Kshs 170,586/- but not notice pay or compensation
Since the dismissal was fair, notice pay and section 49(1)(c) compensation were declined. The Terms and Conditions of Service did not address withheld pay during suspension, so common law applied: the employer's primary obligation is to pay wages, and the employee remained under the employer's control during suspension, entitling the Claimant to wages for that period.
Legal principles established
#- Suspension of an employee must have a contractual or statutory basis to be lawful, otherwise it would be a breach of contract.
- Unless expressly barred, an Acting Director of a public institution may lawfully exercise the disciplinary functions of the Director.
- Under the common law an employer's primary obligation is to pay wages, not provide work, so an employee is entitled to wages earned during suspension.
Court orders
#- 1.The Respondent to pay the Claimant Kshs 170,586/- being wages earned during the suspension period
- 2.Claimant to have costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (s.41, s.43, s.45, s.49(1)(c) invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephat Mukhwana Waswa v Moi Teaching & Referral Hospital [2015] KEELRC 807 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/807/eng@2015-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.