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ELRCPartially AllowedCause No. 1759 of 2011 (formerly High Court CC No. 689 of 2004)· [2018] KEELRC 1576 (KLR)

Gilbert Kambuni Ongeri v Kenyatta National Hospital Board [2018] KEELRC 1576 (KLR)

Employment and Labour Relations Court of Kenya
12 June 2018
HWHellen S. Wasilwa
2,544 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 awarded a former KNH finance manager over Kshs 5 million because the hospital skipped its own disciplinary procedures before firing and defamed him afterwards.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as Senior Internal Auditor and later Finance Manager, was sent on compulsory leave in February 2003 following receipt of Kshs. 465,000 from the petty cash fund as a motor vehicle advance sanctioned by the then Director, and was summarily dismissed on 31st March 2003 for gross misconduct and abuse of office. He claimed damages for unlawful dismissal, six months' pay in lieu of notice, unpaid salaries, house and medical allowances, outstanding leave, and general damages for wrongful imprisonment and defamation. The suit originated in the High Court (HCC No. 689 of 2004) and was transferred to this Court. The court identified four issues: unfair termination, false imprisonment/assault, defamation, and remedies. Applying the repealed Employment Act (Cap 226) and the Respondent's own Human Resource Manual, the court held that although Cap 226 did not require reasons for dismissal, the Respondent's own procedures mandated a preliminary investigation, a show cause letter in gross misconduct cases and a fair hearing, none of which was followed. The dismissal was found unfair, unlawful and in breach of natural justice, especially as the advance was sanctioned by the Director. The claim of assault and detention failed for want of evidence, but the defamation claim succeeded based on the Respondent Director's letter containing allegations the Claimant was never allowed to answer. The court awarded a total of Kshs. 5,115,834 (one month's notice pay, 70 days' leave, unpaid salary and allowances, Kshs. 4,000,000 general damages for defamation, and eight months' salary for unfair termination), plus costs and interest from the date of judgment.

Key legal issues

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01

Unfair and unlawful termination

Holding

Dismissal was unfair and unlawful and in breach of rules of natural justice

Reasoning

Although the repealed Employment Act Cap 226 did not oblige the employer to give reasons for dismissal, the Respondent's own Terms and Conditions of Service and Human Resource Manual required a disciplinary process including a preliminary investigation and a show cause letter in cases of gross misconduct. None of these was applied to the Claimant: no show cause letter, no minutes of any hearing, and the dismissal letter did not detail the misconduct. The advance was also sanctioned by the Director.

p. 4
02

False imprisonment and assault

Holding

Not established

Reasoning

The Claimant alleged that security personnel detained and assaulted him for four hours, but produced no medical records or other evidence of the detention or assault. The burden of proof was not discharged and the allegation failed.

p. 4
03

Defamation

Holding

Established

Reasoning

The letter written by the Respondent's Director (Appendix 13) contained allegations that the Claimant had flouted procurement rules, which the Claimant was never given an opportunity to respond to and which were authored after his dismissal. The letter contained defamatory information and the Claimant's character was defamed, attracting general damages of Kshs. 4,000,000.

p. 4

Legal principles established

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  • An employer must follow its own disciplinary procedures, including a show cause letter and preliminary investigation, before dismissal; failure to do so renders the dismissal unfair.
  • Dismissal for gross misconduct on account of an advance of salary sanctioned by the Director is unfair and unlawful.

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs. 65,320
  2. 2.70 days leave pending of Kshs. 153,156.20
  3. 3.Unpaid salary and allowances for February and March 2003 and arrears owing of Kshs. 374,798
  4. 4.General damages for defamation of Kshs. 4,000,000
  5. 5.Damages of 8 months salary for unfair termination totalling Kshs. 522,560
  6. 6.Total award of Kshs. 5,115,834 plus costs of the Claimant and interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment Act (Cap 226, repealed)Cap 226 Laws of Kenya (as applicable at material time)
  • Employment Act 2007

Cases cited (4)

  • Patricia Wangari Munene Vs Equity Bank Limited
    [2015] KLR
  • Kopar and Associates Limited Vs South Nyanza Sugar Company Limited
    [1992] eKLR
  • Ezekiel Nyangoya Okemwa vs Kenya Marine & Fisheries Research Institute
    [2016] eKLR
  • Phinehas Nyagah Vs Gitobu Imanyara
    [2013] eKLR
On appeal from
High Court
HCC No. 689 of 2004
Jurisdiction invoked
Original employment and labour relations jurisdiction (suit transferred from the High Court as HCC No. 689 of 2004)

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, "Gilbert Kambuni Ongeri v Kenyatta National Hospital Board [2018] KEELRC 1576 (KLR)", Case Analysis (2018). Cause No. 1759 of 2011 (formerly High Court CC No. 689 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1576/eng@2018-06-12

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