Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 1565 of 2014· [2018] KEELRC 235 (KLR)

Godfrey Ochieng Osese v Aga Khan University Hospital Nairobi [2018] KEELRC 235 (KLR)

Employment and Labour Relations Court
13 December 2018
HWHellen Wasilwa
1,616 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that trespassing into a patient's room, even on suspicion of theft, is not grounds for firing a worker without notice or fair compensation.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a Service Attendant from July 2011, was summarily dismissed on 27th March 2014 after being found in a patient's room, room 232, adjacent to the room from which he had been assigned to collect a patient. He explained that he entered the room after seeing a key hanging on the door, that nothing was found on him during a security search, and that nothing was missing from the room. He claimed his summary dismissal was unfair and unlawful, seeking reinstatement or, alternatively, terminal dues of Kshs. 634,500 with interest. The Respondent maintained that the Claimant was found with his hands on a patient's purse, that he was issued a show cause letter, subjected to a disciplinary hearing with an opportunity to be heard, and that his appeal against dismissal was upheld internally. The Respondent relied on Section 44 of the Employment Act and case law holding that courts should not re-enact internal disciplinary processes. The court framed the central question as whether there was a valid reason for summary dismissal. Applying Section 45(2) of the Employment Act, the court held that trespass alone, or alleged intent to steal, was not a valid ground for summary dismissal under Section 44(4), and found the dismissal unfair and unjustified. The court converted the dismissal to a normal termination and awarded Kshs. 342,353, comprising one month's notice pay, pay for 42 unutilized leave days, salary for the suspension period, and six months' compensation for unfair termination. Reinstatement was not granted. The Respondent was ordered to pay costs of the suit with interest at court rates from the date of judgment.

Key legal issues

#
01

Validity of the reason for summary dismissal

Holding

The dismissal was unfair and unjustified because trespass and alleged intent to steal were not valid grounds for summary dismissal under Section 44(4) of the Employment Act

Reasoning

The court applied Section 45(2) of the Employment Act, which requires an employer to prove both a valid and fair reason and a fair procedure. The Claimant denied any intention to steal and nothing was found on him or missing from the room. The court held that trespass per se, and even suspicion of intent to steal, fell short of the misconduct enumerated in Section 44(4) justifying summary dismissal.

p. 3
02

Entitlement to compensation for unfair termination

Holding

The court converted the summary dismissal to a normal termination and awarded notice pay, leave pay, salary for the suspension period and six months' compensation

Reasoning

Having found the dismissal unfair, the court exercised its discretion to grant compensation rather than reinstatement, computing the award based on the Claimant's monthly salary of Kshs. 30,031. The award covered one month's notice in lieu, unutilized leave days, salary withheld during the two-month suspension, and six months' salary as compensation for unfair termination under the Employment Act.

p. 3

Legal principles established

#
  • Trespass into a patient's room alone, or suspicion of intent to steal, does not constitute a valid reason for summary dismissal under the Employment Act
  • An employer who believes an employee has breached his duty but for whom summary dismissal is inappropriate should resort to ordinary termination

Court orders

#
  1. 1.Conversion of the summary dismissal to a normal termination
  2. 2.Payment of 1 month's salary in lieu of notice of Kshs. 30,031
  3. 3.Payment for unutilized 42 leave days of Kshs. 42,043.40
  4. 4.Payment of salary for the period of suspension from 23rd January 2014 to 27th March 2014 of Kshs. 90,093
  5. 5.Payment of 6 months' salary as compensation for unfair termination of Kshs. 180,186
  6. 6.Total award of Kshs. 342,353 to the Claimant
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

#

Legislation

  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41(1)

Cases cited (3)

  • Evans Kamadi Misango v Barclays Bank of Kenya Limited
    [2015] eKLR
  • Alphonce Machanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Daniel Kiplagat Kipkeibut v SMEP Deposit Taking Micro Finance Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Godfrey Ochieng Osese v Aga Khan University Hospital Nairobi [2018] KEELRC 235 (KLR)", Case Analysis (2018). Cause No. 1565 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/235/eng@2018-12-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.