Cherono v Valley Hospital Limited (Employment and Labour Relations Appeal E007 of 2022) [2023] KEELRC 1950 (KLR)
The bottom line
#Kenya's Employment Court upheld a hospital employee's dismissal because the employer followed fair disciplinary procedure and had valid reasons, though it ordered issuance of a Certificate of Service.
What this practically means
#Executive summary
#Key legal issues
#Fair procedure under section 41 of the Employment Act
The appellant was notified of the allegations, responded to the show cause letter, attended a disciplinary hearing with a representative of her choice, and was heard; the requirements of section 41 were met
The court reviewed the show cause letter of 13 March 2019, the appellant's written response, and the minutes of the disciplinary hearing of 19 March 2019. The appellant attended with Victor Ochieng as her representative and responded to all allegations. The court held this satisfied the explanation and hearing requirements of section 41(1) and (2) of the Employment Act, 2007, affirming the trial court's finding of a fair disciplinary process.
Valid and fair reason for termination under sections 43 and 45
The termination was for valid reasons – failure to carry out her job responsibilities causing losses of Kshs 2,987,351 through unclosed bills and mishandling of patients – and the dismissal was therefore justified
The court found the appellant, as head of the records department, acknowledged that the losses were a collective responsibility of the records staff, and that the reasons for disciplinary action and for termination were the same. The trial court's finding that the reasons were valid and the procedure fair was based on the facts and law and the appellate court declined to interfere.
Certificate of service
Although the appeal failed, the court directed that the appellant be issued with a Certificate of Service, addressing her complaint that its absence impeded her from securing other employment
The trial court's judgment stood, but the appellate court added one order to mitigate the appellant's difficulty in obtaining future employment. This was the only relief granted beyond dismissal of the appeal, and no costs were awarded against either side.
Legal principles established
#- On a first appeal the court has a duty to re-evaluate the evidence afresh and arrive at its own conclusion based on the facts and law
- Compliance with section 41 of the Employment Act requires notification of allegations and a hearing at which the employee may be accompanied and heard
Court orders
#- 1.Appeal dismissed for lack of merit
- 2.Appellant to be issued with a Certificate of Service
- 3.No order of costs
- On appeal from
- Chief Magistrates Court at Nakuru (CMELRC)
- CMELRC No 74 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court appellate jurisdiction; first appeal by way of rehearing under Section 78 of the Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherono v Valley Hospital Limited (Employment and Labour Relations Appeal E007 of 2022) [2023] KEELRC 1950 (KLR)", Case Analysis (2023). ELRC Appeal from CMELRC No. 74 of 2019 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1950/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.