Arthur Kamariyagwe v Archdiocese of Nyeri Consolata Hospital Mathari [2019] KEELRC 161 (KLR)
The bottom line
#A Kenyan hospital was ordered to pay a doctor nearly Kshs. 2 million after the court found his dismissal was a rushed, unfair process.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was properly sued
The Respondent is properly before the court as it contracted with the Claimant in the name in which it was sued
The court held that the Respondent held itself out as the employer in the letter of appointment and contract of employment, and having entered the contract in that name it cannot disavow its persona when sued. The witness conceded the entity named could not sue or be sued, but the court found the contract identified the Respondent as employer and that any different employer was never revealed. The argument that the Respondent lacked capacity was therefore hollow and an attempt at being devious.
Whether the Claimant was accorded a fair hearing before termination
The hearing was procedurally flawed; the notice to show cause was short and not properly documented, contravening Article 41(1) of the Constitution and Section 41 of the Employment Act
The court found the notice inviting the Claimant to the disciplinary meeting was short and not properly documented. It noted the cases against the Claimant were concentrated in one month, no complaint had been made to the relevant Board, no patient complained, and the complainant was a subordinate nurse rather than his supervisor. The court inferred the cases were selected to achieve dismissal, indicating a concerted effort to find fault, making the process a witch hunt rather than a genuine disciplinary process.
Whether the termination was for a valid reason
The Respondent failed to demonstrate genuine reasons for dismissal; the termination was unfair
The court observed that the negligence allegations stemmed from a subordinate nurse and not the Claimant's supervisor, no complaints had been forwarded to the Board, and no patients complained. The four cases were all from September 2018 despite 21 months of unblemished service, following friction over study leave. The court concluded the reasons were manufactured to achieve dismissal and that the Respondent had not discharged its burden of justifying the grounds for termination under Section 43 of the Employment Act.
Whether the arbitration clause ousted the court's jurisdiction
The court retains jurisdiction; an arbitration clause cannot oust it, and the Respondent never sought a stay of proceedings
The Claimant submitted, citing Bahari Transport Company v APA Insurance Co. Limited, that jurisdiction cannot be ousted by an arbitration clause and that the Respondent never applied to stay the proceedings. The court's holding on capacity and the subsequent determination of the claim on the merits confirm the court assumed jurisdiction and proceeded to determine the claim rather than referring it to arbitration.
Legal principles established
#- An employer who contracts with an employee in a particular name cannot disavow that persona to escape liability
- Short and improperly documented notice to show cause violates Section 41 of the Employment Act and Article 41(1) of the Constitution
Court orders
#- 1.Payment of six months salary as notice – Kshs. 1,320,000/-
- 2.Payment of 3 months' salary as compensation – Kshs. 660,000/-
- 3.Costs of the suit
- Jurisdiction invoked
- Articles 41(1) of the Constitution and Sections 41, 43 and 45 of the Employment Act; the court's jurisdiction over employment disputes affirmed as not oustable by an arbitration clause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur Kamariyagwe v Archdiocese of Nyeri Consolata Hospital Mathari [2019] KEELRC 161 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/161/eng@2019-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.