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ELRCPartially AllowedCause No 39 of 2018· [2020] KEELRC 1338 (KLR)

David Mburu Mwaura v Central Memorial Hospital Limited [2020] KEELRC 1338 (KLR)

Employment and Labour Relations Court
30 March 2020
3,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court cut a dismissed clinical officer's compensation to one month's salary because, even though the firing process was flawed, his own misconduct justified the dismissal.

What this practically means

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Executive summary

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The Claimant, a clinical officer, sued the Respondent hospital alleging unfair, unlawful and unprocedural summary dismissal following a complaint by a patient, Eunice Njoki Ali, that he had solicited Kshs. 1,000/- from her within the hospital premises. He pleaded permanent and pensionable employment from June 2017, claimed ambush via a disciplinary hearing without notice, denial of the right to representation, and infringement of Articles 41, 47 and 50 of the Constitution, and sought a declaration of unfair termination, twelve months' salary compensation, withheld October salary, notice pay, exemplary damages, a certificate of service, a Kshs. 100,000/- fine, interest and costs. The Respondent denied permanent employment, asserting the Claimant was a locum reliever, and justified the dismissal as gross misconduct: soliciting money from a patient and backdating a sick-off note for a person never treated at the facility. Both parties testified. The court found the Claimant was not permanent and pensionable and had lied in his pleadings and testimony. It held the employer proved the dismissal was substantively justified, but that the process did not conform to Section 41 of the Employment Act. The suit was partially allowed: October salary of Kshs. 23,300/-, one month's compensation of Kshs. 23,300/-, limited costs, interest, and a certificate of service to issue within 7 days failing which a Kshs. 100,000/- fine would be imposed. Execution was stayed for 14 days. The judgment was delivered online under COVID-19 practice directions with the parties' consent.

Key legal issues

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01

Burden of proof in unfair dismissal claims

Holding

The employee alleging unfair or unlawful dismissal must prove it, while the employer bears the burden of justifying the dismissal, failing which it is unfair under Section 45

Reasoning

The court applied Sections 43 and 45 of the Employment Act, allocating the burden: the employee proves the dismissal occurred and was unfair, while the employer must justify it with valid reasons and fair procedure. Although the employer proved the misconduct (soliciting money from a patient and forging a sick-off note), it failed on procedure, warranting limited compensation only.

p. 3
02

Procedural fairness under Section 41

Holding

The dismissal was procedurally flawed as the employer did not conform to Section 41, despite the dismissal being substantively justified

Reasoning

The employer proved gross misconduct justifying dismissal, but went about it 'the wrong way', failing to conform to Section 41's procedural safeguards (notice, hearing, right to representation). The consequence was not reinstatement or full compensation but a capped award of one month's salary, since the Claimant's own misconduct caused the dismissal.

p. 3
03

Terms of employment - permanent vs locum

Holding

The Claimant was not a permanent and pensionable employee; he was engaged on a temporary/locum basis

Reasoning

The court found, contrary to the Claimant's pleadings and testimony, that he was not permanent and pensionable. It accepted the Respondent's evidence that he was engaged as a temporary reliever for an employee on maternity leave, and found the Claimant lied in his pleadings and testimony.

p. 3
04

Certificate of service under Section 51 of the Employment Act

Holding

The Claimant was entitled to a certificate of service, to be issued within 7 days failing which a fine of Kshs. 100,000/- applies

Reasoning

Relying on Section 51(3) of the Employment Act, the court ordered issuance of a certificate of service within 7 days, backed by a default fine of Kshs. 100,000/-, since none had been availed to the Claimant.

p. 3

Legal principles established

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  • An employer must justify a dismissal and comply with Section 41 procedural fairness; non-compliance entitles the employee to compensation even where the dismissal is substantively justified

Court orders

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  1. 1.Payment of Kshs. 23,300/- being October salary
  2. 2.Compensation capped at one month's salary - Kshs. 23,300/-
  3. 3.Costs of the suit limited to the awards in (a) and (b) above
  4. 4.Interest at court rates from October 2017 on the October salary award
  5. 5.Interest at court rates on the one month compensation from date of judgment till payment in full
  6. 6.Issuance of a certificate of service within 7 days, failing which a fine of Kshs. 100,000/- will be imposed by default
  7. 7.Automatic stay of execution for 14 days, and any execution thereafter must be sanctioned by the Court

Authorities

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Legislation

  • Constitution of KenyaArticles 35, 41, 41(1), 41(2)(b), 47, 50
  • Employment ActSections 41, 43, 45, 51(3), 90
  • Employment and Labour Relations Court ActSection 12
  • Fair Administrative Action ActSections 4(3)(g), 4(4)(a)
  • Civil Procedure RulesOrder 21 Rule 1 and 3

Cases cited (8)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Nazareno Kariuki v Feed the Children Kenya
    [2013] eKLR
  • Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Ltd
    [2014] eKLR
  • James Ondima Kabesa v Trojan International Limited
    [2017] eKLR
  • Vicky Kemunto Ocharo v Independent Policing Oversight Authority
    [2018] eKLR
  • Samuel Muchiri Gikonyo v Henkel Chemicals (EA) Limited
    [2014] eKLR
  • Kenya Petroleum Oil Workers Union v Kenya Petroleum Refineries Ltd
    [2013] eKLR
Jurisdiction invoked
First-instance employment and labour relations claim under the Employment and Labour Relations Court Act (Section 12 invoked for exemplary damages); unfair dismissal under Sections 41, 43, 45 and 51(3) of the Employment Act

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, "David Mburu Mwaura v Central Memorial Hospital Limited [2020] KEELRC 1338 (KLR)", Case Analysis (2020). Cause No 39 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1338/eng@2020-03-30

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