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ELRCDismissedEmployment and Labour Relations Cause (Nairobi)· [2018] KEELRC 469 (KLR)

Meshack Onguti v Kenyatta National Hospital & 2 others [2018] KEELRC 469 (KLR)

Employment and Labour Relations Court
20 December 2018
5,966 words in judgment
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The bottom line

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Kenya's Employment Court ruled KNH lawfully retired its director after age 50, dismissing his multi-million shilling claim and the hospital's counterclaim.

What this practically means

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Executive summary

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Dr. Meshack Ong'uti, appointed Director and Chief Executive of Kenyatta National Hospital on 8th March 2002 for a three-year term, was relieved of his position by letter of the Permanent Secretary dated 31st January 2003 and retired from service by the Hospital by letter dated 24th February 2003, effective 20th June 2003. He sued claiming his retirement was wrongful, unfair and unlawful, sought reinstatement, specific performance, 12 months' salary compensation, damages (including Kshs.8,000,000 general and Kshs.5,000,000 exemplary damages for defamation based on the letter of 7th May 2003 barring him from hospital work), and terminal benefits. The Hospital denied the claim and counterclaimed Kshs.76,652,465 for losses allegedly occasioned by irregular procurement during his tenure. The court framed four issues: lawfulness of the retirement, entitlement to reliefs, entitlement to the counterclaim, and costs. Holding that the repealed Employment Act (1976), the KNH Terms and Conditions of Service, the Code of Regulations (Section G.46) and the 1998 circular all contemplated retirement without cause after age 50, the court found the retirement lawful and without proof of unfairness. It held the claimant's Board membership depended on his position as Director, giving no security of tenure. All remedies failed: reinstatement was unavailable and the retirement age had been attained; defamation was unpleaded and unproven; the counterclaim failed for want of evidence on the sums claimed. Both claim and counterclaim were dismissed with each party bearing its own costs. Judgment delivered on 20th December 2018 by Maureen Onyango, J.

Key legal issues

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01

Whether the Claimant's retirement was wrongful, unfair and unlawful

Holding

The retirement was lawful; all applicable instruments contemplated retirement without cause after age 50

Reasoning

The claimant was retired under the repealed Employment Act (1976), the KNH Terms and Conditions of Service, the Code of Regulations and the 1998 circular. All instruments allowed retirement after 50 without cause. The claimant held the Board secretary position only by virtue of being Director, so no security of tenure attached. No proof of unfair termination was advanced.

p. 8
02

Whether the Claimant was entitled to the reliefs sought

Holding

None of the reliefs was granted

Reasoning

Reinstatement and specific performance failed because the applicable law had no reinstatement provision, the retirement ages had been attained, and the 3-year window under the Employment Act 2007 had lapsed. Compensation, severance, gratuity, notice pay and pension were unavailable on the applicable terms and facts. The defamation claim was unpleaded and unproven.

p. 9
03

Whether the Respondent was entitled to its counterclaim of Kshs.76,652,465

Holding

The counterclaim was not proved

Reasoning

Neither of the Respondent's witnesses gave evidence supporting the specific amounts claimed. RW2 testified generally about the Tender Committee's role but made no specific mention of the amount claimed. The audit report and task force report were not produced in court.

p. 9

Legal principles established

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  • Under the Code of Regulations and related circular, an officer who has attained the age of 50 years may be required to retire by the Government at any time without assigning any cause.
  • Parties are bound by their pleadings and the Court cannot award relief not pleaded.
  • A claimant in defamation must prove that some person other than himself found the publication defamatory.
  • Premature termination, even if unfair, does not entitle an employee to salary for the years taken away before mandatory retirement age.

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.The 1st Respondent's counterclaim of Kshs.76,652,465.00 is dismissed
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Legal Notice 109 of 1996 (Kenyatta National Hospital Board Order 1987)
  • Penal Codesections 194, 195
  • Public Service Commission ActRegulation 40(1)
  • Code of RegulationsSection G.46
  • Pensions ActCap 189
  • Employment Act (1976) (repealed)
  • Employment Act, 2007

Cases cited (9)

  • Pyramid Strategies Ltd Vs Charles A Shillanga
  • Oyaro Vs Weekly Citizen & 2 Others
  • J.P Machira T/A Machira & Company Advocates Versus Kamau Kanyango and The Standard Limited
  • East African Airways -Vs- Knight
    (1975) E.A. 165
  • Abdul Shakoor -Vs- Abdul Majied Sheikh
    Nairobi Civil Appeal No. 161 of 1991
  • Daniel N. Ngunia -Vs- K.G.G.C.U. Limited
    [2000] eKLR
  • Harmer v Cornelius
    (1858) 5 CBNS 236
  • National Union of Mine Workers and Another and the Commission for Conciliation, mediation and arbitration
    Case No. J. R. 2512/2007
  • Benson Githinji Vs. the Attorney General & 4 Others
Jurisdiction invoked
Employment and labour relations dispute under Article 162(2) of the Constitution (Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Meshack Onguti v Kenyatta National Hospital & 2 others [2018] KEELRC 469 (KLR)", Case Analysis (2018). Employment and Labour Relations Cause (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/469/eng@2018-12-20

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