Kenya National Union of Nurses v Attorney General [2015] KEELRC 866 (KLR)
The bottom line
#Kenya's Employment Court ruled a nurse dismissed while appealing his conviction was unfairly terminated, capping his compensation at 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of dismissal while criminal appeal was pending and after acquittal
The dismissal was unfair and unlawful - it violated Section 25(3) of the Service Commission Act and the Employment Act, as the grievant was dismissed while his appeal was pending and the respondent adduced no evidence of compliance with disciplinary procedure
The respondent filed only a Reply with mere denials and adduced no evidence to controvert the claim. There was no proof of compliance with disciplinary procedure under the Service Commission Act or the Employment Act. The statutory scheme required that a public officer not be dismissed unless convicted, and the grievant's conviction had been quashed on appeal before his review application was rejected.
Entitlement to general damages equivalent to salary for years remaining to retirement
Refused - the Employment Act caps compensation at 12 months' gross salary; general damages are only available for separate wrongs
The court held that remedies for unfair termination are now statutorily defined in Section 49 of the Employment Act. Awards based on years remaining to retirement apply only to permanent incapacity cases. An aggrieved employee must mitigate and move on; termination does not render an employee incapable of earning a living. The common law position to the contrary is displaced by the statute.
Notice pay
One month's salary in lieu of notice awarded under the Employment Act, using Kshs 83,445 as the adopted final gross salary
The claimant did not prove a contractual entitlement to three months' notice; the Code of Regulations refers notice to the officer's letter of appointment, which was silent. Although the last salary was not pleaded or evidenced by payslips, the respondent did not object to the figure of Kshs 83,445 used in tabulation, and the court adopted it.
Legal principles established
#- A public officer who has been acquitted of a criminal charge (including on appeal) cannot be dismissed or punished on the charge upon which he was acquitted, and no public officer may be dismissed before the criminal charge or appeal is concluded
- General damages beyond the statutory remedies for unfair termination are only available for separate wrongs such as discrimination, defamation, sexual harassment or infringement of constitutional rights
- Damages for unfair termination cannot be assessed on years remaining to retirement; permanent employment is not necessarily employment for life
Court orders
#- 1.Declaration that the termination of employment of the grievant was unfair
- 2.One month's salary in lieu of notice in the sum of Kshs 83,445 awarded
- 3.Maximum compensation of 12 months' salary in the sum of Kshs 1,001,340 awarded
- 4.Prayer for general damages based on 11 years' salary dismissed
- 5.Costs of the case awarded to the claimant
- 6.Decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour relations disputes (Industrial Court Act; Employment Act remedies under Section 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses v Attorney General [2015] KEELRC 866 (KLR)", Case Analysis (2015). Not stated in the judgment (Memorandum of Claim dated and filed 15th August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/866/eng@2015-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.