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ELRCPartially AllowedCause No 2124 of 2014· [2019] KEELRC 1711 (KLR)

Elizabeth Wambui Mburu v Board of Directors, Kenya Plant Health Inspectorate Service [2019] KEELRC 1711 (KLR)

Employment and Labour Relations Court
3 May 2019
BOByram Ongaya
2,553 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 ordered KEPHIS to reinstate a visually impaired employee it had unlawfully retired on ill health, plus 10 years of unpaid salary.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a receptionist and telephone operator from November 1999, lost significant vision in 2004 and was retired on medical grounds effective 17.04.2007 by letter dated 25.06.2008. She trained in adaptive technology with the Kenya Society for the Blind, which certified she could perform her switchboard duties without equipment modification. The Permanent Secretary in the Ministry of Agriculture directed the respondent to reinstate her as a switchboard telephone operator on or before 22.12.2008, but the respondent did not comply, prompting a claim for reinstatement, unpaid salary of Kshs. 23,193.35 per month, general damages, costs and interest. The respondent sought dismissal and indicated a preliminary objection under section 90 of the Employment Act, 2007 on limitation grounds. The Court held the cause of action was a continuing injury - the failure to implement the reinstatement directive - which had never ceased, so the claim was not time barred. It found the claimant's statutory rights as a person with disability under the Persons with Disabilities Act, 2003 and section 5 of the Employment Act were infringed; the retirement on ill health, made without a medical board opinion, was unlawful, misconceived and unreasonable, and internal human resource policies could not override statutory protections. Reinstatement effective 22.12.2008 was ordered, with the interim period treated as leave without pay; Kshs. 3,154,295.60 in unpaid salary was awarded; the respondent was directed to institute and publish a workplace disability policy; and general damages were deemed abandoned for lack of submissions. The respondent was ordered to pay costs of the suit.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The claim was not time barred as it was founded on a continuing injury - the respondent's failure to implement the Permanent Secretary's reinstatement directive - which had never ceased

Reasoning

Section 90 requires suits on continuing injuries to be filed within 12 months of cessation. The Court found the continuing injury had not ceased because the reinstatement directive effective 22.12.2008 had never been implemented. The claim was also founded on statutory rights under the Persons with Disabilities Act, 2003 and section 5 of the Employment Act, which continue to be infringed.

p. 2
02

Entitlement to reinstatement pursuant to the Permanent Secretary's directive

Holding

The claimant, having acquired a disability in employment and been rehabilitated, was entitled to reinstatement effective 22.12.2008 as directed by the Permanent Secretary

Reasoning

The Court found the claimant established her disability and rehabilitation, and that the respondent retired her on ill health without a medical board opinion. The Permanent Secretary acted within his supervisory authority under section 22(3) of the former Constitution, and the directive was consistent with the Persons with Disabilities Act, 2003 and the Public Service Commission Code of Practice on Mainstreaming Disability.

p. 3
03

Remedies

Holding

Reinstatement effective 22.12.2008 with no break in service, unpaid salary of Kshs. 3,154,295.60 for 136 months at Kshs. 23,193.35 per month, a workplace disability policy, and costs; general damages deemed abandoned

Reasoning

Reinstatement was to give effect to the directive, so section 12(3)(vii) of the Employment and Labour Relations Court Act would not bar the order. The salary award ran from the directive date. General damages attracted no submissions and were abandoned.

p. 3

Legal principles established

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  • A suit founded on a continuing injury under section 90 of the Employment Act must be instituted within 12 months from the date of cessation of the injury, and a failure to implement a reinstatement directive constitutes a continuing injury that has not ceased
  • Retiring an employee on alleged ill health without an opinion of a medical board or medical practitioner, where the employee has been rehabilitated, is unlawful, misconceived and unreasonable and amounts to disability discrimination
  • An employer's internal human resource policies cannot override express statutory provisions on the rights of persons with disabilities

Court orders

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  1. 1.Reinstatement of the claimant in the employment of the respondent in the position held prior to the retirement on grounds of ill health, effective 22.12.2008, with the period from 25.06.2008 to 22.12.2008 treated as leave without pay with no break in service
  2. 2.The claimant to report to the respondent's Chief Executive Officer and Managing Director not later than 22.05.2019 at 9.00am for appropriate deployment and to continue in employment at prevailing remuneration and full benefits
  3. 3.The respondent to pay the claimant Kshs. 3,154,295.60 by 15.08.2019, failing which interest at Court rates from the date of judgment till payment in full
  4. 4.The respondent to institute a workplace level policy on promoting a safe and healthy workplace per paragraph 6(5) of the Public Service Commission Code of Practice on Mainstreaming Disability, file it in Court and publish it not later than 01.02.2020
  5. 5.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007section 5
  • Persons with Disabilities Act, 2003sections 11, 12(1), 15(1) and 13
  • Constitution of Kenya, 2010Article 54(2)
  • Former Constitution of Kenyasection 22(3)
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Public Service Commission Code of Practice on Mainstreaming Disabilityparagraphs 6(5) and 16
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12(3)(vii); Employment Act, 2007; Persons with Disabilities Act, 2003

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, "Elizabeth Wambui Mburu v Board of Directors, Kenya Plant Health Inspectorate Service [2019] KEELRC 1711 (KLR)", Case Analysis (2019). Cause No 2124 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1711/eng@2019-05-03

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