Benjamin Charles Akenga v Hema Hospital Limited [2022] KEELRC 235 (KLR)
The bottom line
#A Kenyan court ruled that a doctor whose employer stopped his salary and barred him from work was unfairly dismissed, not a deserter, awarding him Kshs. 1.25 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant deserted his employment or was unfairly/constructively dismissed
The claimant proved on a balance of probability that he did not voluntarily desert employment; he was constructively dismissed for no valid reason and without fair procedure
The court accepted the claimant's testimony that he reported back after his unpaid leave lapsed but was barred from resuming duty. It found RW1 untruthful and dishonest because he contradicted himself on whether leave was granted and denied knowledge of conciliation proceedings despite a labour officer's letter showing the respondent participated. Even if the claimant absconded, the respondent never reached out to him before dismissal.
Whether the reliefs sought were merited
Partially merited: declaration of unfair termination, one month's notice pay, two months' compensation, salary arrears for two months only, and certificate of service
Flowing from the declaration of unfair termination under Section 45, the claimant was awarded notice pay and compensation, tempered by his three years of service and absence of misconduct on his part. Salary arrears were limited to November and December 2019 because the claimant ought to have mitigated by seeking alternative work or resigning and suing for constructive dismissal earlier. Certificate of service was awarded under Section 51 of the Employment Act.
Legal principles established
#- Before terminating employment, an employer must have a valid and fair reason and must follow a fair procedure, including giving the employee a hearing
- Where an employer stops an employee's salary and prevents him from resuming duty, the employee is constructively dismissed
- An employee must mitigate loss after breach by the employer, including by seeking alternative employment
Court orders
#- 1.Declaration that the dismissal of the claimant from employment was unlawful and unfair within the meaning of Section 45 of the Employment Act
- 2.One month salary in lieu of notice of Kshs. 250,000
- 3.Compensation for unfair termination of Kshs. 500,000 (equivalent to 2 months' salary)
- 4.Salary arrears for November and December 2019 of Kshs. 500,000
- 5.Total award of Kshs. 1,250,000
- 6.Issuance of a certificate of service to the claimant under Section 51 of the Employment Act
- 7.Costs of the suit to the claimant
- 8.Interest at court rate from the date of judgment
- 9.Award of damages subject to statutory declarations
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Charles Akenga v Hema Hospital Limited [2022] KEELRC 235 (KLR)", Case Analysis (2022). Cause No. E001 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/235/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.