Nasibo Dabaso Jillo v Commander Kenya Army & another [2015] KEELRC 901 (KLR)
The bottom line
#Kenya's Employment Court ruled the Army unlawfully discharged a recruit without a Medical Board review and awarded her Kshs.3 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of discharge on medical grounds without a Medical Board
Discharge without a Medical Board review was unlawful and violated the right to lawful employment in the Armed Forces
It was common cause that the Petitioner, diagnosed with a curable illness (pneumonia with bronchospasms), was never referred to a Medical Board. The Armed Forces Act and Standing Orders make such a review mandatory for medical discharge. The Respondent's medical notes were not a medical report and no medical officer testified. The Armed Forces had good medical facilities and no evidence showed the illness was terminal or debilitating.
Violation of dignity and natural justice
The manner of discharge — bundling her out on the pass-out parade day without explanation — was degrading, inhumane and unfair
The court adopted the finding of Wendoh J in the prior judicial review that the discharge was gross and unfair and contravened natural justice. Relying on Article 28 of the 2010 Constitution (and equivalent 1969 provisions), the court held that employers must respect and protect the dignity of workers. The timing, in the presence of family who had travelled for the ceremony, compounded the violation.
Inconsistency in the Respondent's grounds for discharge
The Respondent's shifting between 'services no longer required' (s.176(g)) and 'medical grounds' (s.176(d)) undermined its case
The discharge letter cited a ground inconsistent with the asthmatic-condition claim. These are separate and distinct statutory grounds, and the mix-up, together with the absence of a medical report, supported the finding of unlawful discharge.
Legal principles established
#- Discharge of a serviceman on medical grounds requires review and a report by a Medical Board as a mandatory requirement
- An employer must provide valid reasons for termination/discharge, even where a statute governs service
- Fairness requires some form of hearing even where the statute does not expressly provide for one
Court orders
#- 1.Award of Kshs.3,000,000 gross general damages for pain and suffering, denied employment and violation of human rights, payable by the Respondents jointly and severally
- 2.Attorney General to confirm to the Court within thirty (30) days that the Petitioner's personal belongings including her National identity card have been given to her
- 3.Interest on the award at Court rates from the date of judgment until payment in full
- 4.Respondents to pay the costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court under the Constitution of Kenya, 2010 (Article 28 dignity considered; Article 162(2) jurisdiction implied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nasibo Dabaso Jillo v Commander Kenya Army & another [2015] KEELRC 901 (KLR)", Case Analysis (2015). Industrial Cause (Petition) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/901/eng@2015-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.