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ELRCDismissedAppeal against Kisumu Chief Magistrate's Court Civil Suit No. 448 of 2013· [2018] KEELRC 885 (KLR)

Aga Khan Hospital v Hellen Akinyi Omondi [2018] KEELRC 885 (KLR)

Employment and Labour Relations Court
18 October 2018
MNMathews N. Nduma
1,350 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that an employer must pay KShs 700,000 for negligently making a pregnant employee work through known medical complications.

What this practically means

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Executive summary

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This is a first-instance appeal to the Employment and Labour Relations Court from the judgment of Hon. Ms. Odawo in Kisumu Chief Magistrate's Court Civil Suit No. 448 of 2013 delivered on 29th April 2016. The Appellant employer challenged the finding that it was liable for negligent conduct and unfair labour practices in its treatment of the Respondent, a cashier at the Agakhan Medical Centre, Busia, who suffered the loss of her baby. The Appellant argued the Respondent did not disclose a boda boda accident, sought to abort at Busia District Hospital, and that no complaint had been made to the KMPDB. The Respondent pointed to evidence that after an ultrasound scan revealed no cardiac activity in the embryo, the doctor administered folic acid, did not give bed rest, did not disclose the second scan results, and recalled her to work while she suffered pain and internal bleeding. The court found the doctors were acutely aware of the complications, that recalling the Respondent to work in that condition was negligent and constituted an unfair labour practice contrary to Article 41 of the Constitution. Applying the Selle v Associated Motor Boat Co. Ltd principle on appellate interference with findings of fact, the court found no fault in the magistrate's assessment. The appeal was dismissed with costs before both courts, and the trial court's award of general damages of Kshs.700,000 with interest from the date of judgment until payment in full was confirmed. Judgment was delivered on 18th October 2018 by Mathews N. Nduma, Judge.

Key legal issues

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01

Negligence of employer/doctors in handling a pregnant employee with complications

Holding

The Appellant and its doctors were negligent in recalling the Respondent to work and continuing to treat her despite knowing of the pregnancy complications, internal bleeding and a scan showing no cardiac activity

Reasoning

The court found that the doctors were acutely aware of the medical complications. A scan detected no cardiac activity, yet a booster was administered giving mixed signals, bed rest was not given, and the employee was recalled to work and subjected to pain and hardship while in a condition her doctors knew of.

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02

Unfair labour practice

Holding

Requiring a sick employee to work in those circumstances was an unfair labour practice contrary to Article 41 of the Constitution of Kenya 2010

Reasoning

The court held that the manner of handling the employee at her hour of need was itself an unfair labour practice within the dictates of Article 41, affirming the trial magistrate's conclusion on the evidence.

p. 2
03

Standard for appellate interference with findings of fact

Holding

The appellate court will not disturb the trial court's factual findings absent clear error on the evidence

Reasoning

Relying on Selle vs Associated Motor Boat Co. Ltd and Isabella Karanja vs M. Malele, the court applied the principle that interference is warranted only where the trial court was clearly wrong, based on no evidence, misapprehended the evidence, or applied a wrong principle. None of these applied here.

p. 2

Legal principles established

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  • An appellate court can only interfere with the trial court's finding of facts and exercise of discretion if the court aquo was clearly wrong on its assessment of facts or where the findings were based on no evidence, a misapprehension of the evidence or on a wrong principle

Court orders

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  1. 1.The appeal is dismissed with costs before the trial court and this court
  2. 2.The award of general damages by the trial court in the sum of Kshs.700,000 with interest at court rates from date of judgment till payment in full is confirmed

Authorities

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Legislation

  • Constitution of KenyaArticle 41

Cases cited (4)

  • Selle vs Associated Motor Boat Co. Ltd
    [1969] E. A. 123
  • Isabella Karanja vs M. Malele
    [1982 – 88] 1 KAR 186
  • Jimmy Paul Semenye v Aga Khan Health Service T/A Aga Khan Hospital & 2 others
    null
  • Blyth v Birmingham G
    (1856) Exch.781.784
On appeal from
Kisumu Chief Magistrate's Court
Civil Suit No. 448 of 2013
Jurisdiction invoked
First appellate jurisdiction over the subordinate court judgment (Employment and Labour Relations Court)

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, "Aga Khan Hospital v Hellen Akinyi Omondi [2018] KEELRC 885 (KLR)", Case Analysis (2018). Appeal against Kisumu Chief Magistrate's Court Civil Suit No. 448 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/885/eng@2018-10-18

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