Kenya National Union of Nurses v Kisumu County Public Service Board & another (Cause E031 of 2022) [2023] KEELRC 1551 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the grievant was authorized to proceed on study leave
Yes - his application was approved by the relevant committees and lack of a release letter did not invalidate the approval; the disciplinary process and salary stoppage were malicious, unwarranted and unfair
Minutes of 4th September 2020 and 16th November 2020 showed the grievant's course and study leave were approved, and a memo of 19th January 2021 requested release letters for him. The court found the Respondents' later letter asserting non-approval showed dishonesty, that their failure to issue the release letter was mismanagement of their dockets, and that recalling the grievant mid-studies was unreasonable.
Whether the salary stoppage was lawful and whether the withheld salary is payable
The stoppage was an unfair labour practice; the grievant is entitled to withheld salary from resumption of duty (4/9/2021), awarded for September 2021 to April 2022
The Respondents admitted stopping the salary as a disciplinary measure, but produced no evidence they informed the grievant of the decision. Since the absence was founded on an approved study leave, the disciplinary basis collapsed and the grievant was entitled to the full salary withheld from the time he resumed duty.
Whether the grievant was discriminated upon
Yes - the grievant was treated differently from two colleagues approved for study leave at the same time and was awarded Kshs. 500,000/-
RW1 admitted the other approved applicants went for training and were not disciplined, but produced no release letters to support the claim that they alone received them. Applying Section 5 of the Employment Act and the burden it places on employers, the court held the differential treatment was proved on a balance of probability.
Whether the grievant is entitled to damages for lost earnings and special damages
No - the twin claims were subsumed in the awards already made and were dismissed
The court found these claims duplicated the discrimination award and the unpaid salary award already made, so no separate damages were merited.
Legal principles established
#- An employer's failure to issue a release letter does not invalidate a duly approved study leave; the employee's absence is then not absence without lawful cause
- Stopping an employee's salary without informing the employee constitutes an unfair labour practice
- The burden of disproving workplace discrimination lies on the employer
Court orders
#- 1.Payment of 8 months salary at Kshs. 1,047,760/-
- 2.Kshs. 500,000/- for discrimination
- 3.The Claimant is awarded the costs of the suit and interests until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over unfair labour practice claims under Article 41 of the Constitution (inferred from claim; judgment does not expressly cite the provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses v Kisumu County Public Service Board & another (Cause E031 of 2022) [2023] KEELRC 1551 (KLR)", Case Analysis (2023). Employment and Labour Relations Court Cause (Kisumu) – Memorandum of Claim dated 13th July 2022, filed 29th July 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1551/eng@2023-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.