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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 657 (KLR)

Kenya National Union of Nurses v Permanent Secretary Ministry of Health & 2 others [2020] KEELRC 657 (KLR)

Employment and Labour Relations Court
23 July 2020
OMOnesmus N. Makau
3,608 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 upheld a nurse's dismissal for desertion but ordered payment of salary for the 17 months he actually worked without pay.

What this practically means

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Executive summary

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The Claimant sued on behalf of Lenpike Mutunga Kioko, a nurse employed by the Ministry of Health from July 1980, challenging his summary dismissal on 4.4.2002 after disciplinary proceedings over alleged desertion following a 6 months' unpaid leave taken without prior approval. The Claimant sought declarations that the dismissal was wrongful and unprocedural, compensation for unpaid salary for 17 months served between March 2000 and July 2001, compensation for loss of salary for periods out of service between 1996 and 2010, promotion-related arrears, damages for unfair dismissal and emotional distress, and costs. The Respondents maintained the dismissal was lawful for desertion under the Code of Regulations, that the applicable law was the repealed Employment Act Cap 226, and that the 2010 engagement was a fresh appointment rather than reinstatement. The court held that the repealed Act applied and, although it did not require a valid reason or oral hearing, there was in any event a valid reason for dismissal since the grievant admitted deserting duty and proceeding on leave without approval. However, the court awarded salary for the 17 months actually worked between reinstatement in March 2000 and dismissal in 2002, calculated at Kshs. 6,727 per month totalling Kshs. 114,359 with interest from filing, holding that withholding pay for work done would amount to servitude. All other heads of claim were dismissed for lack of proof, lack of legal basis, or because the 2010 offer was a fresh appointment. Judgment was entered for the claimant with costs.

Key legal issues

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01

Whether the dismissal was wrongful and unlawful

Holding

The dismissal was neither wrongful nor unlawful as there was a valid reason

Reasoning

The applicable law was the repealed Employment Act Cap 226 which did not require a justifiable reason or prior oral hearing. Nonetheless the grievant admitted in his letter dated 1.8.2001 that he deserted duty from 1.1.1996, and admitted in cross-examination that he proceeded on unpaid leave before approval. Rw2 testified unpaid leave could only be for 3 months. Accordingly a valid reason existed for summary dismissal.

p. 4
02

Entitlement to salary for March 2000 to July 2001

Holding

Awarded Kshs. 114,359 (17 months at Kshs. 6,727) plus interest

Reasoning

Evidence showed the grievant was reinstated on 3.3.2000 and attended to duties effectively until 15.6.2001. He claimed Kshs. 78,790 monthly but this was not demonstrated; the proper monthly salary per the Statement of Overpayment was Kshs. 6,727. Working without pay would amount to servitude.

p. 4

Legal principles established

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  • The law applicable to a dismissal is the statute in force at the time of the cause of action, not the later Employment Act 2007, absent express retrospective intention
  • Denying an employee salary for work actually performed before formal dismissal offends constitutional tenets against servitude

Court orders

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  1. 1.Judgment entered for the claimant in the sum of Kshs. 114,359 plus interest at court rates from the date of filing the suit but less statutory deductions
  2. 2.Costs of the suit awarded to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and related labour legislation

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, "Kenya National Union of Nurses v Permanent Secretary Ministry of Health & 2 others [2020] KEELRC 657 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/657/eng@2020-07-23

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