Kenya National Union of Nurses v Nairobi County Government & 5 others [2016] KEELRC 883 (KLR)
The bottom line
#Nairobi County's dismissal of 64 Pumwani nurses was void because the wrong official issued it and no fair hearing was held; the nurses were reinstated with full pay.
What this practically means
#Executive summary
#Key legal issues
#Whether abscondment of duty was a valid reason for dismissal
Abscondment was a valid reason warranting dismissal under Section 43 of the Employment Act; the nurses' fear of insecurity did not justify a prolonged refusal to resume work when other nurses returned
The Court accepted that the nurses were absent due to insecurity following the alleged baby-swapping incident and had obtained orders for security. However, out of over 160 nurses at the facility, only the Claimant's members failed to return, and they declined requests to resume duty. Under Section 43(2) the employer must prove reasons for dismissal, and absence from duty under Section 44 constitutes gross misconduct. The Court found abscondment proved as a valid reason.
Whether due process was followed before dismissal
The dismissal was unfair and unjustified because it was carried out by an entity without legal authority and without adherence to fair hearing
Under Sections 58 and 59 of the County Government Act, disciplinary control over county public service staff vests in the County Public Service Board. The suspensions and dismissals were effected by Leboo Ole Morintat as Chief Officer, Public Service Management, an entity unknown to the Act, whose authority was never demonstrated. The County Public Service Human Resource Manual requires natural justice, but no disciplinary hearings were attended or conducted, violating Section 45(2) of the Employment Act.
Whether reinstatement was the appropriate remedy
Reinstatement was ordered as the only viable remedy, within the Court's power under Section 12(3)(vii) of the ELRC Act and guided by Section 49(4) of the Employment Act
Applying the Section 49(4) factors, the Court noted the respondents raised no reservations about reinstatement, the nurses' services remained needed at Pumwani Maternity Hospital, the region's largest maternity facility, and the nurses had long service and limited prospects of comparable employment. Reinstatement within three years of dismissal was practical and would not inconvenience the respondents.
Legal principles established
#- Suspension and dismissal of county public officers may only be effected by the County Public Service Board or duly authorised officers; action by an unauthorised entity is null and void
- Fair disciplinary process requires adherence to natural justice before dismissal under Section 45(2) of the Employment Act
Court orders
#- 1.The suspension and dismissal letters issued to the Pumwani Maternity Hospital nurses declared null and void and of no effect
- 2.The Claimant members reinstated to work unconditionally with no loss of salary and allowances within 30 days of the judgment
- 3.Costs of the case awarded to the Claimants
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12(3); Employment Act, Sections 41, 43, 45 and 49
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses v Nairobi County Government & 5 others [2016] KEELRC 883 (KLR)", Case Analysis (2016). Cause No. 593 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/883/eng@2016-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.