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ELRCPartially AllowedIndustrial Cause (Petition) — number not stated in judgment· [2015] KEELRC 901 (KLR)

Nasibo Dabaso Jillo v Commander Kenya Army & another [2015] KEELRC 901 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
19 June 2015
2,207 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Petitioner, recruited into the Kenya Army on 26 February 2007 and allocated service number 77604, was removed from the Recruits Training School at Eldoret on 20 September 2007 — the day of her pass-out parade — without explanation, and was later informed by letter dated 16 January 2008 that she had been discharged on medical grounds (asthma), said to be under the Armed Forces Act. She petitioned for declarations that the discharge was illegal, unfair, violated natural justice, fair administrative action, her dignity, and her right to fair labour practices, plus a mandatory injunction for return of her personal belongings and compensation of Kshs.50 million and Kshs.19,515,335.40 for lost salary. The court found that the Respondent's grounds were inconsistent, alternating between medical discharge (s.176(d)) and discharge for services no longer required (s.176(g)). Critically, it was common cause that no Medical Board reviewed her status before the medical discharge, a mandatory requirement under the Armed Forces Act and Standing Orders. The court adopted the prior finding of Wendoh J in the related judicial review that the discharge was gross and unfair, held that the manner of removal was degrading and inhumane, and found no evidence the curable illness rendered her unfit to serve. The court awarded Kshs.3,000,000 general damages jointly and severally against the Respondents, with interest at court rates, ordered the Attorney General to confirm within 30 days that her personal belongings (including her National ID) had been returned, and awarded costs to the Petitioner. The claim succeeded in part, the full sums sought not being granted.

Key legal issues

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01

Lawfulness of discharge on medical grounds without a Medical Board

Holding

Discharge without a Medical Board review was unlawful and violated the right to lawful employment in the Armed Forces

Reasoning

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.

p. 2
02

Violation of dignity and natural justice

Holding

The manner of discharge — bundling her out on the pass-out parade day without explanation — was degrading, inhumane and unfair

Reasoning

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.

p. 4
03

Inconsistency in the Respondent's grounds for discharge

Holding

The Respondent's shifting between 'services no longer required' (s.176(g)) and 'medical grounds' (s.176(d)) undermined its case

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 3.Interest on the award at Court rates from the date of judgment until payment in full
  4. 4.Respondents to pay the costs of the suit

Authorities

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Legislation

  • Armed Forces Act Cap 199 Laws of Kenyasections 17a, 176(d), 176(g)
  • Employment Act 2007Section 43
  • Constitution of Kenya 2010Article 28
  • Constitution of Kenya 1969 (erstwhile Constitution)protection of human dignity
  • Universal Declaration on Human Rights (UDHR)preamble
  • African Charter on Human and Peoples' RightsArticle 5
  • Armed Forces Standing Ordersnot specified

Cases cited (2)

  • Misc Civil Application No. 1847 of 2009 (Judicial Review), In re the Petitioner (Wendoh J)
  • Nairobi Industrial Cause No. 1161 of 2010 V.M.K. vs. C.U.E.A.
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

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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, "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.