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ELRCDismissedCause No 817 of 2018· [2023] KEELRC 2159 (KLR)

Kasura v Kenyatta National Hospital (Cause 817 of 2018) [2023] KEELRC 2159 (KLR)

Employment and Labour Relations Court
22 September 2023
3,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a nurse's dismissal for assaulting a patient in labour, ruling obstetric violence is gross misconduct justifying summary dismissal.

What this practically means

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Executive summary

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The Claimant, a Nursing Officer employed by the Respondent hospital, was summarily dismissed on 13th August 2015 following allegations that she assaulted a patient, SN, while assisting her during labour. She sued seeking a declaration that termination was unfair, 12 months' salary in compensation, one month's notice pay, a certificate of service, costs and interest. The Respondent conceded the employment relationship but maintained that the disciplinary process was fair, the oral complaint against the Claimant was investigated, the differing in-patient numbers were a typographical error, and dismissal was for the single ground of assaulting the patient. The Court framed three issues: procedural fairness, substantive fairness and entitlement to the prayers sought. On procedure, it held it was not mandatory to await a written complaint; an oral complaint, investigation and interview of the complainant sufficed, and the Claimant was heard with a KUDHEIHA representative and the dismissal copied to her union, satisfying section 41 of the Employment Act. On substance, the Court found she engaged in obstetric violence - beating a mother in troubled labour - a form of abuse condemned by the Constitution, international human rights instruments, the WHO and the Inter American Court in Britez Arce v. Argentina, constituting gross misconduct justifying dismissal under section 43. The certificate of service was already available. The claim was dismissed with no order as to costs, dated 22nd September 2023 at Nairobi.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

Procedure was fair under section 41 of the Employment Act; the Claimant was informed of the allegations, attended the hearing with a KUDHEIHA representative and was given an opportunity to defend herself

Reasoning

An oral complaint by the patient, escalated to the head of labour ward and followed by a face-to-face interview, sufficed to trigger disciplinary action. The Claimant was invited by letter dated 27th July 2015, heard on 28th July 2015, attended with her union representative, and the dismissal letter was copied to the union. The lack of a written complaint and the typographical error in the IP number did not prejudice her. The union raised no objection at any stage of the process.

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02

Substantive fairness of the dismissal

Holding

There was valid reason for dismissal under section 43 of the Employment Act; the Claimant's assault of a patient in labour amounted to obstetric violence and gross misconduct

Reasoning

The patient was interviewed by the Assistant Chief Nurse and confirmed the assault. The Court characterised the Claimant's conduct as obstetric violence, referencing WHO statements, the Britez Arce v. Argentina decision, and constitutional guarantees of security and dignity under Articles 29 and 28. Beating a mother 'to help her push' violates human dignity and the employer's policy, justifying summary dismissal to prevent normalization of the vice.

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03

Standard of identification of the offending employee

Holding

Disciplinary proceedings are not criminal identification parades; the patient's description of the nurse as having red hair did not invalidate the finding against the Claimant

Reasoning

The Court held that identification in disciplinary proceedings does not require proof beyond reasonable doubt. It sufficed that the Claimant was the nurse on night duty who received the patient and took her through the birthing process; the patient was familiar with her from admission. Whether the Claimant had red hair was not a significant fact.

p. 5

Legal principles established

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  • An employer may act on an oral complaint; it is not mandatory to wait for a written complaint before subjecting an employee to disciplinary process
  • Discrepancies in documentation that do not prejudice the employee (a typographical error in a patient number) do not invalidate disciplinary proceedings
  • Obstetric violence is gross misconduct justifying summary dismissal under section 43 of the Employment Act

Court orders

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  1. 1.The Claim is declined
  2. 2.No order on the costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Constitution of KenyaArticle 29
  • Constitution of KenyaArticle 28
  • Penal Codeassault and battery provisions
  • Universal Declaration of Human RightsArticle 3
  • International Covenant on Civil and Political RightsArticle 9
  • International Covenant on Social, Economic and Cultural Rightsnot specified
  • Convention on the Elimination of All Forms of Discrimination Against Womennot specified
  • Electronic Case Management Practice DirectionsPractice Direction 6[2]

Cases cited (1)

  • Britez Arce v. Argentina
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; statement of claim filed 29th May 2018)

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, "Kasura v Kenyatta National Hospital (Cause 817 of 2018) [2023] KEELRC 2159 (KLR)", Case Analysis (2023). Cause No 817 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2159/eng@2023-09-22

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