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ELRCPartially AllowedMemorandum of Claim dated 28th February 2017, filed 3rd March 2017· [2019] KEELRC 552 (KLR)

Kenneth Alaro Mboya v Kenya Electricity Generating Co. Limited [2019] KEELRC 552 (KLR)

Employment and Labour Relations Court
24 October 2019
LNLinnet Ndolo
2,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a Medical Board recommendation cannot replace the mandatory employee hearing under Section 41 before terminating someone for ill health.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as an Artisan from July 1981 and earning Kshs. 257,576.76 monthly, was retired on medical grounds effective 1st June 2015, two years short of normal retirement, after the National Medical Board found he was unlikely to engage in gainful employment. He sued, contending the retirement was unlawful and unfair: the medical recommendation conflicted with his attending doctors' reports, he was not heard, not given the Medical Board's report, and the CBA procedure was breached. He sought notice pay, withheld salary and allowances, accrued leave pay, twelve months' compensation, CBA allowances, costs and interest. The Respondent maintained the retirement complied with Clause 22 of the CBA following the Medical Board's recommendation. The court framed two issues: whether termination was unlawful, and entitlement to remedies. It found the Medical Board's recommendation diametrically contradicted by the Claimant's occupational health fitness certificates and the Aga Khan Hospital certificate deeming him fit for work; further, he had been promoted in December 2014 and given additional responsibilities in March 2015, and the muster roll showed continuous attendance. The court held the Respondent failed to observe the mandatory procedural fairness of Section 41 of the Employment Act: it did not hear the Claimant before referring him to the Medical Board and did not present or explain the Board's findings before terminating. CBA Clause 22 had to be read with Section 41. The court awarded twelve months' salary in compensation (Kshs. 1,969,176), plus admitted four months' notice pay (Kshs. 656,392) and 40 days' leave pay (Kshs. 218,797), totalling Kshs. 2,844,365, with interest and costs. Claims for withheld salary and allowances were dismissed for want of proof.

Key legal issues

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01

Whether retirement on medical grounds amounted to unfair termination

Holding

Termination was unfair under Section 45 of the Employment Act for want of procedural fairness despite the Medical Board's recommendation.

Reasoning

The medical fitness certificates and the Aga Khan Hospital report contradicted the National Medical Board's finding of incapacity. The Claimant was promoted and given additional responsibilities, and the muster roll showed he was at work. The Respondent gave no opportunity to discuss alleged incapacity, made no effort to re-deploy, and did not hear the Claimant under Section 41 or explain the Board's findings before deciding to terminate. Clause 22 of the CBA cannot oust the mandatory Section 41 requirements.

p. 5
02

Remedies entitlement

Holding

Twelve months' salary in compensation awarded given long service and procedural failure; admitted notice and leave pay payable; withheld salary/allowance claims dismissed.

Reasoning

The Court took into account the Claimant's long service since 1981 and the Respondent's failure to observe due procedure in awarding the maximum twelve months' compensation. The notice pay and accrued leave claims were admitted by the Respondent and thus payable, while the withheld salary and allowances claims lacked proof.

p. 5

Legal principles established

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  • An employer contemplating termination on account of ill health must comply with the procedural fairness requirements of Section 41 of the Employment Act, and appearance before a Medical Board does not substitute for that statutory hearing; CBA provisions must be read together with the Act.
  • The employer must hear the employee before referring them to a Medical Board and must present and explain the Board's findings before terminating on medical grounds.

Court orders

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  1. 1.Judgment entered in favour of the Claimant: 12 months' salary in compensation of Kshs. 1,969,176
  2. 2.4 months' salary in lieu of notice of Kshs. 656,392
  3. 3.40 days' leave pay of Kshs. 218,797
  4. 4.Total award of Kshs. 2,844,365
  5. 5.Interest at court rates from the date of judgment until payment in full
  6. 6.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Constitution of KenyaArticle 27
  • Employment ActSection 41
  • Employment ActSection 45
  • Occupational Safety and Health Regulations

Cases cited (3)

  • Kennedy Nyanguncha Omanga v Bob Morgan Services Limited
    [2013] eKLR
  • Samuel Langat Tanui v Director General, National Intelligence Service & another
    [2017] eKLR
  • Sospeter Bangoya Oyange v Bob Morgan Services Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 41 and Section 45 applied)

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, "Kenneth Alaro Mboya v Kenya Electricity Generating Co. Limited [2019] KEELRC 552 (KLR)", Case Analysis (2019). Memorandum of Claim dated 28th February 2017, filed 3rd March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/552/eng@2019-10-24

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